U.S. v. Williams
| Decision Date | 26 November 1990 |
| Docket Number | No. 89-1174,89-1174 |
| Citation | 919 F.2d 1451 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kevin WILLIAMS, aka Marcus Kevin Oliver, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Peter R. Bornstein of Berenbaum & Weinshienk, P.C., Denver, Colo., for defendant-appellant.
John M. Hutchins, Asst. U.S. Atty. (Michael J. Norton, Acting U.S. Atty., and Kathryn Meyer, Michael P. Carey, and Bernard E. Hobson, Asst. U.S. Attys., on briefs), Denver, Colo., for plaintiff-appellee.
Before SEYMOUR and ANDERSON, Circuit Judges, and COOK, * District Judge.
Appellant Kevin Williams appeals from the district court's judgment denying his motion to withdraw his guilty plea to a violation of 21 U.S.C. Sec. 846 (1988). Williams contends he entered into his plea involuntarily. He also appeals from the district court's determination of his sentence under the Sentencing Guidelines. We affirm.
A federal grand jury indicted Williams for possession with intent to distribute in excess of 500 grams of cocaine and a conspiracy to do the same in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846. Plea negotiations ensued and the Government and Williams agreed that Williams would plead guilty to a conspiracy charge involving approximately two kilograms of cocaine in exchange for the Government's dismissal of the substantive count and a binding recommendation of a sentence of sixty months pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure.
In negotiating the plea, the attorneys had met for several hours to discuss sentencing. They calculated what they believed the sentence range would be under the Sentencing Guidelines. Both sides agreed that the offense severity rating would be 24. Williams previously had been convicted of: shoplifting, larceny, malicious destruction of property, and domestic violence battery. After reviewing Williams' criminal record, the attorneys noted in the plea agreement only two prior offenses they considered relevant for purposes of sentencing: the domestic violence charge and one unarmed felony charge presumably for the larceny conviction. Based on these prior offenses, the attorneys calculated that Williams had no more than three criminal history points, which placed him in criminal history category II with a sentencing range of fifty-seven to seventy-one months. The prosecutor agreed to recommend a sixty-month sentence. After the attorneys had advised Williams of their preliminary calculations and the sentence recommendation, he agreed to plead guilty to the conspiracy count.
Williams and the Government advised the district court that Williams sought to enter a conditional guilty plea based on the parties' binding plea agreement. The court stated that it could not be bound by the parties' sentencing computations and recommendation and that it therefore had to reject the plea agreement and the conditional plea. 1
The parties had anticipated the court would reject the conditional plea. They submitted an alternative plea agreement in which Williams stated that he desired to enter an unconditional guilty plea. The conditional and unconditional agreements were substantively identical except the latter agreement included the Government's non binding recommendation that the defendant be sentenced to a sixty-month prison term. The sixty-month term was based on the parties' earlier understanding that Williams was within the fifty-seven to seventy-one month guideline range because he had a base offense level of 24 and a criminal history category of II.
The terms of the plea agreement reflected its tentative nature. The parties expressly stated that the stipulated facts underlying the criminal history category determination and the Government's subsequent recommendation were preliminary:
Rec., vol. I, doc. 4 at 3. The parties acknowledged that the court had the power, regardless of the plea agreement, to make its own findings of fact:
"The Government and the defendant are aware that the guideline range(s) resulting from these stipulations are not binding on the Court, and the Court is free, pursuant to Secs. 6A1.3 and 6B1.4, to reach its own findings of facts and factors which are relevant to sentencing, accepting or rejecting the parties' positions herein."
Before the court accepted the guilty plea, it clearly stated that it would not be bound by the Government's sentencing recommendation and would have to consider it in conjunction with the Presentence Report (PSR):
Rec., vol. II, at 8.
The defendant signified his understanding of the court's position:
The court also informed the defendant of the possible consequences of his plea. The court told Williams his potential maximum sentence. The court also informed him that his sentence would be computed under the guidelines in view of the probation department's report and that he would be unable to withdraw his plea once he entered it.
The court continued:
Id. at 14-15 (emphasis added).
The district court accepted Williams' unconditional plea and subsequently sentenced him according to the probation department's PSR, which contained calculations different from those of the attorneys' embodied in the plea agreement. The probation department calculated that Williams was within criminal history category III, rather than category II. The PSR assessed three criminal history points for Williams' domestic violence violation, one point for the offense and two additional points because he committed the offense during probation. The probation department also assessed a criminal history point for Williams' 1978 malicious destruction of property conviction, and one for the larceny conviction. Thus, according to the PSR, Williams had a total of five criminal history points, placing him in criminal history category III.
The district court reduced the total offense level from 26 to 24 for acceptance of responsibility and adopted the probation department's findings that placed Williams in criminal history category III. The resulting guideline range was sixty-three to seventy-eight months. The court imposed a seventy-eight month sentence for the conspiracy count and dismissed the remaining count. Subsequent to sentencing, Williams filed a Motion to Vacate Plea, which the court implicitly denied by entering judgment, including the sentence, under the Sentencing Reform Act.
Two alleged errors are the basis of Williams' appeal. First, Williams...
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