U.S. v. Williams

• Decision Date: 02 March 2009
• Docket Number: No. 06-3418.,06-3418.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Josiah WILLIAMS, also known as Little Man, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

557 F.3d 556

UNITED STATES of America, Plaintiff-Appellee, v. Josiah WILLIAMS, also known as Little Man, Defendant-Appellant.

No. 06-3418.

United States Court of Appeals, Eighth Circuit.

Submitted: July 9, 2008.

Filed: March 2, 2009.

Webb L. Wassmer, Cedar Rapids, IA, for appellant.

Daniel C. Tvedt, AUSA, Cedar Rapids, IA, for appellee.

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Josiah Malachi Israel Williams stands convicted of one count of distributing, and aiding and abetting the distribution of, crack cocaine within 1,000 feet of a school. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 860, and 18 U.S.C. § 2. On appeal, he argues the district court erred by: not entering a guilty plea; not reducing his sentence for acceptance of responsibility; increasing his sentence for obstruction of justice; finding the substance was crack (as opposed to "cocaine base"); not running his sentence concurrent to a state sentence; or, not considering the disparity between sentences for crack and powder cocaine. This court affirms the conviction, but remands for resentencing.

I.

In fall 2003, Iowa special agent Darrell Simmons bought a gram of crack and some marijuana from Barb Shaurette. Simmons said he was "looking to move a lot of crack cocaine, make some money." Shaurette arranged for him to buy one ounce of crack and one ounce of marijuana from her supplier for $1,400.

On October 3, they met again. Shaurette called to find out where to pick up the drugs, and took Simmons to an apartment within 1,000 feet of a grade school. Maurice Malone answered the door, Shaurette asked for "Little Man," and defendant Josiah Williams appeared. Lamarr Parks also was present. Entering the apartment, Williams and Parks took Simmons to a bedroom, where Parks strip-searched him while Williams looked on. As Simmons re-dressed, Williams asked what he planned to do with the drugs. When Simmons replied "sell it," Williams said, "cool."

Simmons returned to the living room, sitting on the couch. In the kitchen, Williams and Parks assembled a bag of crack and a bag of marijuana. Williams emerged from the kitchen, placed the bags on the arm of the couch, and asked Simmons for $1,500. Simmons replied the deal was for $1,400. Williams countered, "No, $1,500." Simmons said he only had $1,400. Williams said "That's okay," without asking Parks or Malone. Simmons handed Williams $1,400 and put the drugs in his pocket. Simmons asked Williams for his phone number, and Williams said to get it from Shaurette. Simmons called later that day to complain that the crack was short eight grams; Williams promised to make it up next time.

On October 10, Williams agreed to sell Simmons two ounces of crack for $2,400. He took the money and promised to return with the crack, but never did. Williams pled guilty to theft in state court.

Williams was indicted for distributing, and aiding and abetting the distribution of, crack cocaine. He appeared before the court¹ without a plea agreement, attempting to plead guilty. The case went to trial, and Williams was convicted of distributing, and aiding and abetting.

II.

Williams argues "the district court abused its discretion in refusing to accept Mr. Williams' plea of guilty to the aiding and abetting," claiming "a factual basis for the plea was established." See Fed. R.Crim.P. 11(b)(3). Williams did not object at the plea hearing, and proceeded to trial—he notes the issue "may not have been preserved." This court reviews for plain error. See United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) ("a defendant who lets Rule 11 error pass without objection in the trial court must carry the burdens of Rule 52(b) ... a silent defendant has the burden to satisfy the plain-error rule...."). See also Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.").

The plea hearing proceeded:

THE COURT: Let's turn our attention, then, to whether you are guilty. Tell me in your own words what you did on October 3rd, 2003, that makes you guilty of this offense.

THE DEFENDANT: I received a phone call from Barb Sherrette (phonetic) asking about some marijuana, and I agreed to meet and send it to him, and I was there when the crack cocaine was sold also.

THE COURT: And did you participate in that sale?

THE DEFENDANT: Yeah, part of. Aiding and abet, yes.

THE COURT: Okay, and in what way did you assist; did you get the people to come to that transaction?

THE DEFENDANT: Yeah.

The court inquired if the government was "satisfied with that as a factual basis for the plea." The government requested that Williams testify "a little bit more in detail."

THE COURT: In that factual basis for the plea, Mr. Williams, it says that once you were—you and the police officer were at the apartment where the crack was sold, it says that you placed an ounce of crack on the arm of the couch near Officer Simmons, Darryl Simmons, and asked for $1,500. Then Officer Simmons stated the deal was supposed to be for $1,400, and you accepted that money; is that true as well?

THE DEFENDANT: No.

THE COURT: And what about that is not right?

THE DEFENDANT: I didn't place the stuff on—I didn't place it on the couch, and I didn't receive the money. I only received $200 out of the $1,400.

THE COURT: And what did you get the $200 for?

THE DEFENDANT: An ounce of reefer.

The district court observed, "I don't think that supports a factual basis for the plea," and (at the defense's request) recessed for Williams to consult with counsel. Afterwards, his counsel agreed with the court that "we aren't going to be able [to] achieve a factual basis."

At trial, the four elements for aiding and abetting were listed in the jury instructions:

In order to have aided and abetted the commission of distributing "crack cocaine," a person must:

One, have known the crime of distribution of "crack cocaine" was being committed or going to be committed;

Two, have knowingly acted in some way for the purpose of causing, encouraging or aiding the crime of distribution of "crack cocaine";

Three, have intended that the crime of distribution of "crack cocaine" be committed; and

Four, the offense involved 5 grams or more but less than 50 grams of "crack cocaine."

A "factual basis for a plea of guilty is established when the court determines there is sufficient evidence at the time of the plea upon which the court may reasonably determine that the defendant likely committed the offense." United States v. Brown, 331 F.3d 591, 594 (8th Cir.2003). Williams responded "yeah" to the questions "did you participate in that sale" and "did you get the people to come to that transaction," but specifically limited his admissions to marijuana. As to the crack, he asserted mere presence—"I was there when the crack cocaine was sold also"— which is insufficient to show he likely committed the offense. See, e.g., United States v. Shoffner, 71 F.3d 1429, 1433-34 (8th Cir.1995) ("However, a defendant's mere presence, coupled with the knowledge that someone else who is present intends to sell drugs, is insufficient to establish membership in a conspiracy."). Williams did not admit bringing Simmons and Shaurette to the apartment to buy crack. At the time of the plea, he did not admit to: assisting Parks in the strip-search of Simmons; handling the money Simmons paid for the crack; placing either the crack or the marijuana on the couch; or, handling the crack at all.

A valid guilty plea "admits all of the elements of a criminal charge ... [and] admits factual allegations in the indictment that form the basis for federal jurisdiction." Mack v. United States, 853 F.2d 585, 586 (8th Cir.1988) (per curiam). Williams admitted none of the elements of aiding and abetting the distribution of (much less distributing) crack cocaine. The district court did not commit plain error by refusing to enter a plea of guilty.

III.

At sentencing, the district court denied the motion for an acceptance-of-responsibility reduction, and imposed an obstruction-of-justice increase for perjury. Williams objected. This court reviews de novo the district court's application of the Sentencing Guidelines, and its factual findings for clear error. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.2005).

A sentencing enhancement for obstruction of justice is appropriate when the "defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant conviction...." U.S.S.G. § 3C1.1. "In order to base an obstruction of justice enhancement on a defendant's trial testimony, the district court must find by a preponderance of the evidence that he perjured himself." United States v. Lewis, 436 F.3d 939, 945 (8th Cir.2006). "A district court applying the obstruction-of-justice enhancement for perjury must review the evidence and make an independent finding, by a preponderance of the evidence, that the defendant gave false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Ziesman, 409 F.3d 941, 956 (8th Cir.2005) (quotations and citations omitted).

Williams argues that his trial testimony, like his statements at the plea hearing, "was sufficient to convict him of the charged alternative of aiding and abetting." He contends the disputed facts ("whether Mr. Williams directly provided the `crack cocaine' to S/A Simmons and whether S/A Simmons handed the money directly to Mr. Williams") are immaterial. He concludes that, even if he is untruthful on these points, his testimony is not perjurious.

In its sentencing memorandum, the district court convincingly refutes this claim:

During trial, Special Agent Simmons testified that Defendant placed one bag of...