U.S. v. Williams
| Decision Date | 29 July 1991 |
| Docket Number | 90-3305 and 90-3421,Nos. 90-3239,s. 90-3239 |
| Citation | 940 F.2d 176 |
| Parties | UNITED STATES of America, Plaintiff-Cross Appellant (90-3421), Plaintiff-Appellee, v. Robert A. WILLIAMS, Defendant-Appellant (90-3239), Althea Anderson, Defendant-Appellant (90-3305), Defendant-Cross Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael Burns (argued), Office of the U.S. Atty., Columbus, Ohio, for U.S.
Gary W. Deeds (argued), Columbus, Ohio, for Robert Antonio Williams aka David Williams.
Joseph Landusky (argued), Columbus, Ohio, for Althea Anderson.
Before MILBURN and BOGGS, Circuit Judges, and GILMORE, District Judge. *
Defendants Robert A. Williams and Althea Anderson appeal their respective jury convictions, and Anderson additionally contests her sentence. The United States cross-appeals the district court's grant of a two-level reduction in offense level under the Sentencing Guidelines to Anderson for acceptance of responsibility. For the reasons discussed in this opinion, the court upholds Williams' and Anderson's convictions. The court also finds no merit to Anderson's challenge to the sentence imposed. However, we hold that the district judge erred in finding that Anderson accepted responsibility for her offense. We therefore revoke the two-level reduction granted for acceptance of responsibility and remand her case for resentencing.
On May 2, 1989, David Kintz, the manager of the Arborgate Inn in Columbus, Ohio, entered room 102 to lock out the guests who had not paid for that day's occupancy by checkout time. During the lockout, Kintz discovered a brown paper bag under one of the beds which he believed contained a large quantity of crack cocaine. Kintz's wife alerted the Columbus police who came and seized the bag. The paper bag contained plastic baggies, the contents of which field tested positive for cocaine.
Shortly after the officers arrived, a vehicle pulled up in front of room 102. The vehicle fit the description Kintz gave of a vehicle previously seen parked outside the room. Anderson was driving, Williams was sitting in the front passenger seat, and two women were sitting in the back seat.
As the officers approached the car, one officer saw Williams bend over toward the bottom of the seat with his hands out of sight. Another officer observed what she believed to be the butt of a gun sticking out from under the front passenger seat. After the four occupants were removed from the car, a Charter Arms .38 caliber revolver was retrieved, as well as two plastic bags of suspected crack cocaine found beside the gun. The cocaine was packaged in a similar manner as the cocaine found in the room. A mobile pager was also found on the front passenger seat of the car.
A key to room 102 was found in Anderson's left hand and $263 in cash was found on her person. A second key to the room and $750 in cash were discovered on Williams. Upon execution of a search warrant for room 102, officers found an apparent drug ledger, $1,528 in cash and two photo identification cards with Williams' photo but with a fictitious name.
During a disturbance in the parking lot a few days prior to the arrest, Williams told Kintz that he was staying in room 102. Anderson also testified to staying in the room at least one night. Both men's and women's clothing were found in the room, some of which Anderson admitted to owning.
The drugs were confirmed to be cocaine base with a total street value of between $50,000 and $60,000. Latent fingerprints were obtained on some of the plastic bags found in the room and were identified as Williams'. No fingerprints were found on the bags in the car or on the gun.
Upon their arrest, Williams and Anderson both gave false names to the arresting officers and claimed to be juveniles. Anderson admits that she again lied about her name and age during juvenile court proceedings and successfully convinced her mother to lie about Anderson's age and identity to the juvenile court.
On June 1, 1989, a grand jury sitting in Columbus, Ohio, returned a two count indictment against Defendants Williams and Anderson. Count I of the indictment charged both Williams and Anderson with unlawful possession with intent to distribute in excess of 400 grams of cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1). Count II charged Williams with possession of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c).
The jury trial began on September 14, 1989, in the United States District Court for the Southern District of Ohio. Throughout the trial, Anderson maintained her innocence and testified that she was unaware of any illegal activity. Anderson stated that the day of the arrest was the first time she had been in the car in which she and Williams were arrested.
Upon the closing of the government's case, Williams and Anderson made motions for judgment of acquittal, which the court denied. Neither motion for acquittal was renewed at the close of all the evidence. At the end of the four-day trial, the jury returned guilty verdicts on all charged counts. The district court then ordered presentence investigations for each of the Defendants.
Anderson's presentence investigation report ("PSR") suggested a two-level increase in the offense level because there was a gun involved. The PSR also suggested a two-level increase because Anderson obstructed the investigation by giving a false identity to officers and the juvenile court. The PSR did not suggest any reduction in offense level based upon Anderson's role in the offense or for accepting responsibility.
At Anderson's sentencing hearing, the district court considered defense counsel's objection to the two-level sentencing enhancement for possession of a firearm. Noting that trial evidence indicated the firearm was Williams', and that the indictment did not even charge Anderson with possession of a firearm, the court concluded that a two-level enhancement for possession of a firearm was not warranted.
The court also considered, sua sponte, adjustments based upon Anderson's role in the offense, her obstruction of justice and her acceptance of responsibility. The court departed from the recommendation of the PSR and granted Anderson a two-level reduction based upon her role in the offense. The court stated that the evidence clearly established that Anderson was less culpable than Williams, and that Anderson played a minor role in the offense within the meaning of Sec. 3B1.2(b). The court, however, determined that Anderson was not eligible for a four-level reduction as a minimal participant.
The district court went on to find that the PSR was correct in suggesting a two-level enhancement of Anderson's offense level pursuant to Sec. 3C1.1 for having obstructed justice. The court based this enhancement upon the fact that Anderson tried to conceal her identity from enforcement officers and from a judge, and persuaded her mother to falsely attest to her daughter's identity as well.
In addition, the court determined that Anderson deserved a two-point reduction under Sec. 3E1.1 for having accepted responsibility. To support this reduction, the court cited a letter from Anderson, sent after her conviction, which the district court believed reflected her remorse.
Defendants Williams and Anderson argue that there was insufficient evidence to support their respective convictions and assign error to the district court's denial of their motions for judgment of acquittal under Federal Rule of Criminal Procedure 29(a). Although Williams does not contest his conviction on the drug offense, he claims that the court should have granted his motion to acquit on the firearms charge because the government failed to prove ownership or possession of the gun. Anderson argues that the court should have granted her motion to acquit on the drug charge because the government failed to prove that she had either actual or constructive possession of the cocaine.
This court will not entertain the defendants' appeals on this issue because the defendants have failed to preserve the right to challenge the sufficiency of the evidence. Although both Williams and Anderson moved for judgment of acquittal pursuant to Rule 29 at the close of the government's case in chief, both failed to renew the motion at the close of all the evidence. This failure constitutes a waiver of an objection to the sufficiency of the evidence. United States v. Faymore, 736 F.2d 328, 334 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984). Absent a showing of a manifest miscarriage of justice, this court will not review a district court denial of a Rule 29 motion where a defendant does not renew that motion at the close of all the evidence. Id. Finding no miscarriage of justice in the denial of Williams' or Anderson's motion, we decline to grant review of the sufficiency of the evidence upon appeal. 1
In addition to challenging the sufficiency of the evidence, Anderson also assigns error to the district court's factual findings under the Sentencing Guidelines. Anderson claims that the district court erred in finding that she was a "minor" rather than a "minimal" participant, and thus incorrectly granted her a two rather than four level reduction for sentencing.
Sentencing Guidelines Sec. 3B1.2(b) allows the court to decrease a defendant's offense level by two levels if the defendant is deemed a minor participant in the criminal activity. Application Note 3 defines a minor participant as one who is less culpable than most other participants, but whose role could not be described as minimal. Application Note 1 describes a minimal participant as one who is plainly among the least culpable of those involved in the conduct of a group, and Sec. 3B1.2(a) provides for a four-level reduction in offense level for such minimal participants.
This court will not...
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