682 Fed.Appx. 453 (6th Cir. 2017), 16-5394, United States v. Williams

Docket Nº:16-5394
Citation:682 Fed.Appx. 453
Opinion Judge:DAMON J. KEITH, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff -- Appellee, v. TONY WILLIAMS, Defendant -- Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Lorraine Craig, Assistant U.S. Attorney, Office of the U.S. Attorney, Memphis, TN. For TONY WILLIAMS, Defendant - Appellant: Jessica Katherine Winters, Law Office, Lexington, KY.
Judge Panel:BEFORE: KEITH, BATCHELDER, and McKEAGUE, Circuit Judges.
Case Date:March 16, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 453

682 Fed.Appx. 453 (6th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff -- Appellee,

v.

TONY WILLIAMS, Defendant -- Appellant

No. 16-5394

United States Court of Appeals, Sixth Circuit

March 16, 2017

NOT RECOMMENDED FOR PUBLICATION

Editorial Note:

Sixth Circuit Rule 28(g) limits citation to specific situations. Please see Rule 28(g) before citing in a proceeding in a court in the Sixth Circuit. If cited, a copy must be served on other parties and the Court.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Lorraine Craig, Assistant U.S. Attorney, Office of the U.S. Attorney, Memphis, TN.

For TONY WILLIAMS, Defendant - Appellant: Jessica Katherine Winters, Law Office, Lexington, KY.

BEFORE: KEITH, BATCHELDER, and McKEAGUE, Circuit Judges.

OPINION

Page 454

DAMON J. KEITH, Circuit Judge.

Defendant-Appellant Tony Williams (" Williams" ) appeals the sentence imposed after he pled guilty to robbery affecting interstate commerce in violation of 18 U.S.C. § 1951. Williams entered a guilty plea through an agreement that stipulated to a term of 96 months of incarceration pursuant to Fed. R. of Crim. P. 11(c)(1)(C). The signed plea agreement contained a waiver of Williams' appellate rights. The Presentencing Report (" PSR" ) provided for a sentencing range of 84 to 105 months. However, following objections made by Williams at sentencing, the district court instead determined a range of 46 to 57 months. Nonetheless, the district court accepted the plea agreement, which resulted in an above-Guidelines sentence of 96 months. The district court did not provide a written explanation for the above-Guidelines sentence in its Statement of Reasons form. Williams argues on appeal that (1) the district court abused its discretion in accepting the above-Guidelines sentence in the plea agreement without sufficiently stating the reasons for the upward variance, and (2) his conviction should be reversed because he received ineffective assistance of counsel. For the following reasons, we DISMISS Williams' appeal.

I. Background

On March 19, 2015, Williams and co-defendant Kentarius Carpenter (" Carpenter" ) were charged in a two-count grand jury indictment. Count I alleged robbery affecting interstate commerce in violation of 18 U.S.C. § 1951. Count II alleged brandishing a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). Count I carried a maximum term of twenty years' imprisonment, and Count II carried a minimum term of seven years.

The robbery occurred on April 28, 2014 in Memphis, Tennessee. Williams and Carpenter forced a female employee of a Dollar General store, Heather Findley (" Findley" ), out of her vehicle and into the store after she had closed up for the night. The two men made Findley open a safe inside the store, and one of the men took an undetermined amount of cash out of the safe. While they were in the store, the police arrived, forced open the security doors, and arrested Williams and Carpenter.

Following the indictment, Williams requested the appointment of counsel, and Assistant Federal Defender Needum Germany (" Germany" ) entered an appearance on his behalf. At arraignment, Williams pled not guilty to Count I and Count II. On the first scheduled day of trial, a different Assistant Federal Defender, Mary Jermann-Robinson (" Jermann-Robinson" ), made an appearance as Williams' co-counsel for the first time. As the trial opened, she stated that there had " been some falling out . . . [and] some angry communication between [Williams] and Germany." Moments later, counsel for both parties conferred, and informed the court that they may have reached a settlement. The district court called a recess, and the parties returned with a signed plea agreement that stipulated to a 96-month term of incarceration pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The agreement provided that Williams would plead guilty to the Count I robbery charge and waive his appellate rights. The waiver provision in the plea agreement states that: [t]he defendant understands that 18 U.S.C. § 3742 gives him the right to appeal the sentence imposed by the

Page 455 Court. Acknowledging this, the defendant knowingly and voluntarily waives his right to appeal any sentence imposed by the Court and the manner in which the sentence is determined so long as the period of incarceration is 96 months. This waiver is made in exchange for the concessions made by the United States in this Plea Agreement.

In exchange for the guilty plea, the government agreed to drop Count II.

The plea agreement was filed in open court, and the district court immediately conducted a plea hearing with Williams. Following a lengthy plea colloquy, the district court found Williams competent to plead guilty and accepted the guilty plea. The district court repeatedly asked whether Williams understood the effect of the appellate waiver, and Williams stated that he understood that all of his appeal rights1 would be forfeited if he were sentenced to 96 months in accordance with the agreement.

Following the district court's acceptance of Williams' plea, the PSR calculated a criminal history category of IV and a total offense level of twenty-five, resulting in a Guidelines range of 84 to 105 months. The total offense level was increased by six points because a firearm was used during the commission of the robbery. Williams' appointed counsel, Germany, filed an objection to the PSR stating that the weapons enhancement should not apply under the facts of his case, but Germany did not object to any of the facts set forth in the PSR relating to a weapon being used in the robbery. Jermann-Robinson thereafter filed a supplement to Williams' position on the PSR, which stated that Carpenter, but not Williams, possessed a weapon during the commission of the robbery. The supplement argued that the " Guidelines are calculated correctly," but requested that the district court grant a downward variance from that range.

Less than a month after Jermann-Robinson filed a supplement to Williams' PSR position, both she and Germany filed motions to withdraw as counsel, and the district court granted the motions. Williams subsequently filed a motion to withdraw his guilty plea through his newly-appointed counsel, Claiborne Ferguson (" Ferguson" ). This motion was withdrawn after the district court warned Williams that he could be subject to perjury charges if he testified contrary to statements made during his plea colloquy. The case proceeded to sentencing.

At the sentencing hearing, Williams expressed frustration with counsel and asked the district court if he could " go pro se" at the hearing. The district court granted this request, and Williams thereafter represented himself while Ferguson remained in the courtroom to supervise. Williams stated his objections to the facts and to the Sentencing Guidelines range in the PSR. He denied that a weapon was used during the robbery and objected to the application of the six-point weapon enhancement. Upon Williams' objection, the district court agreed to remove all language in the PSR that referenced a firearm from consideration. Thus, the six-point weapon enhancement was removed, and the court recalculated the Guidelines range to be 46 to 57 months. Yet despite the reduced Guidelines range, the district court accepted the plea agreement and imposed the agreed-to 96-month sentence.

The district court produced a Statement of Reasons form following its acceptance of the plea agreement. However, the Statement of Reasons form erroneously stated

Page 456

that the sentence imposed was " below the guideline range" in accordance with a binding plea agreement. In the space provided on the Statement of Reasons form, the court provided no reasons for the upward variance from the 46 to 57 month...

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