U.S. v. Williams

• Decision Date: 18 February 2008
• Docket Number: No. 06-30010.,06-30010.
• Citation: 517 F.3d 801
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George W. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

517 F.3d 801

UNITED STATES of America, Plaintiff-Appellee, v. George W. WILLIAMS, Defendant-Appellant.

No. 06-30010.

United States Court of Appeals, Fifth Circuit.

February 18, 2008.

Camille Ann Domingue, Asst. U.S. Atty. (argued), Lafayette, LA, for U.S.

Tara Selver (argued), Gig Harbor, WA, for Williams.

Appeal from the United States District Court for the Western District of Louisiana.

Before JOLLY, CLEMENT and OWEN, Circuit Judges.

OWEN, Circuit Judge:

George W. Williams was originally sentenced prior to the issuance of United States v. Booker,¹ under a mandatory Sentencing Guidelines regime. In a prior appeal, this court held that certain factors did not justify an upward departure from the mandatory Guidelines range. On remand, after Booker was decided, the district court imposed a non-Guidelines sentence greater than the advisory Guidelines range. We hold that the district court did not violate the law of the case in imposing the sentence and that the sentence was not unreasonable. We therefore affirm.

I

George W. Williams was convicted of federal conspiracy, fraud, money laundering, and criminal forfeiture. The facts underlying these convictions were described by this court in United States v. Williams.² The district court sentenced Williams to 172 months of imprisonment under the then-mandatory Guidelines. The district court grouped Williams's offenses, and applied the base-offense level of the money laundering guideline,³ on the ground that it was the highest among the grouped offenses.⁴ The district court enhanced this level by two based on its finding that Williams had obstructed justice by perjuring himself at trial,⁵ and upwardly departed from the guidelines by four levels based on its finding that the money laundering scheme was complex and involved a large number of victims.⁶

Williams appealed the sentence, claiming that both the enhancement and the upward departure were in error. This court held there was no error in the enhancement based on obstruction of justice⁷ but held that the district court did err in its upward departure based on complexity and number of victims.⁸ The court reasoned that the scheme was not exceptional in its complexity nor in the number of victims within the meaning of § 5K2.0,⁹ as the district court had found.¹⁰ This court therefore vacated the sentence and remanded to the district court in June, 2004.

In January, 2005, the Supreme Court decided United States v. Booker,¹¹ holding both that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt,"¹² and that the guidelines must be non-mandatory in order to comply with the Sixth Amendment.¹³

In December, 2005, the district court held a re-sentencing hearing. The district court apparently believed that the enhancement based on obstruction of justice was invalid under Booker,¹⁴ since the fact of perjury had not been found by a jury nor admitted by Williams. Without the obstruction of justice enhancement and the upward departure for complexity and number of victims, the advisory guideline sentencing range was 78 to 97 months. Citing the sentencing factors stated in 18 U.S.C. § 3553(a) and the specific circumstances of Williams's case, the court imposed a non-Guidelines sentence and again sentenced Williams to 172 months of imprisonment.

Williams has appealed. He claims (1) that the sentence violates the law of the case established by this court in the first appeal, because the district court's stated factors for ordering 172 months of imprisonment were many of the same factors that this court held did not justify a four-level upward departure under the Sentencing Guidelines in the initial sentencing; and (2) that the 172-month sentence is unreasonable.

II

We review a district court's interpretation of our remand order de novo, including whether the law of the case forecloses any of the district court's actions on remand.¹⁵ The law of the case doctrine contemplates that "an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal."¹⁶ "The law of the case doctrine, however, is not inviolate. We have explained that `a prior decision of this court will be followed without re-examination ... unless (i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work a manifest injustice.'"¹⁷ If it appears that this court's holding has not been followed in subsequent proceedings, we may nevertheless affirm the district court if one of the exceptions applies.¹⁸

In the prior appeal we held that the district court "erred by departing upward from the sentencing guidelines pursuant to § 5K2.0."¹⁹ We concluded that the facts of Williams's case did not reveal an exceptional degree of complexity or number of victims, that the Sentencing Guidelines already took complexity and number of victims into account, and therefore that the Guidelines themselves did not allow an upward departure on those grounds.²⁰ Our earlier holding was an interpretation of the mandatory Sentencing Guidelines, and a non-Guidelines sentence could not be imposed at that time.

The Supreme Court's decision in Booker was intervening law that created one of the recognized exceptions to the law of the case doctrine. Booker rendered the Guidelines sentencing range advisory only.²¹ This was a dramatic shift in sentencing law and permitted the district court to consider complexity and number of victims in selecting a sentence, even though we had ruled that those factors were improperly considered in upwardly departing pursuant to section 5K2.0 of the then-mandatory regime. The Booker decision was intervening controlling law that created an exception to the law of the case doctrine.²²

III

Williams argues that his sentence is unreasonable, contending that his money laundering offenses are "run of the mill" and within the "heartland of money laundering offenses." He further asserts that the amount of loss is the relevant measure of harm, not the number of victims or complexity of the scheme because, he contends, the number of victims and the sophistication of the scheme is subsumed in the loss tables. The Guidelines range should be applied, he argues, absent extraordinary circumstances peculiar to the particular defendant. He asserts that his 172-month sentence (fourteen years and four months) is a 77% increase over the maximum guideline sentence calculated by the district court, which was 97 months (eight years and one month). A sentence of eight years and one month would more than satisfy the sentencing goals in 18 U.S.C. § 3553, he contends.

A

The Supreme Court has recently provided additional guidance in determining whether a sentence is reasonable.²³ The Court reconfirmed that "[r]egardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard."²⁴ In performing that review, we are to "first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range...."²⁵

Although Williams asserts that the district court properly calculated the Guidelines range, the Government contends otherwise, arguing that the district court should have applied a two-level enhancement for perjury. We will consider the Government's contention since in reviewing the reasonableness of a sentence, we are to "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range."²⁶ The Government has not cross-appealed and requested that we remand, so we do not consider whether a remand would be required if it had done so.

The district court found in its initial sentencing that Williams had committed perjury during his trial and imposed an obstruction enhancement under § 3C1.1.²⁷ We affirmed that enhancement in the first appeal. At the sentencing hearing on remand, the district court reconfirmed its conclusion that Williams committed perjury during his trial, but the district court did not apply an enhancement because Williams "was not charged with nor convicted of perjury." However, in order for the enhancement to apply, the fact of perjury need not be tried to a jury and may instead be found by the sentencing judge by a preponderance of the evidence.²⁸ The calculation of the Guidelines range at re-sentencing should have included a two-level enhancement for obstruction of justice, and the correct advisory sentencing range was 97 to 121 months. This error does not entitle Williams to any relief because his sentence was not "imposed as a result of an incorrect application of the sentencing guidelines"²⁹ since the properly calculated range was higher than that applied by the district court. Nor can it be said that Williams's sentence "would have been different but for the district court's error"³⁰ in calculating the applicable Guideline's range.

There is no contention that the district court "select[ed] a sentence based on clearly erroneous facts, or fail[ed] to adequately explain the chosen sentence...."³¹ Accordingly, we turn our consideration to "the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard."³²

B

When, as here, a sentence is outside the Guidelines range, we "may consider the extent of the deviation, but must give due deference to the district court's decision that the § 3553(a) factors, on [the] whole, justify the extent of the variance."³³ We apply the familiar deferential standard: "The fact that the appellate court might reasonably have...