U.S. v. Williams

• Decision Date: 23 February 2005
• Docket Number: Docket No. 04-2882-CR.
• Citation: 399 F.3d 450
• Parties: UNITED STATES of America, Appellee, v. Bernard B. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

399 F.3d 450

UNITED STATES of America, Appellee, v. Bernard B. WILLIAMS, Defendant-Appellant.

Docket No. 04-2882-CR.

United States Court of Appeals, Second Circuit.

Argued: February 4, 2005.

Decided: February 23, 2005.

COPYRIGHT MATERIAL OMITTED

Lucas E. Andino, New York, N.Y. (Ivan S. Fisher, New York, N.Y., on the brief), for Defendant-Appellant.

Michael A. Asaro, Asst. U.S. Atty., Brooklyn, N.Y. (Roslynn R. Mauskopf, U.S. Atty., Emily Berger, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for Appellee.

Before: Before: NEWMAN and POOLER, Circuit Judges; and BRIEANT,^* District Judge.

JON O. NEWMAN, Circuit Judge.

This appeal of a sentence imposed before the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), provides an opportunity to amplify our reasons for the form of remand we have used in some pending cases with sentences that are erroneous in light of Booker. See United States v. Crosby, 397 F.3d 103 (2d Cir.2005). Bernard Williams appeals from the May 19, 2004, judgment of the District Court for the Eastern District of New York (Nina Gershon, District Judge), sentencing him to 46 months' imprisonment after a jury found him guilty of recklessly causing the transportation of hazardous materials, in violation of 49 U.S.C. § 46312(a)(2). We conclude that the sentencing judge's mandatory use of a Sentencing Guidelines enhancement violated the Sixth Amendment and, in the circumstances of this case, warrants a Crosby remand. We therefore remand to afford the District Court an opportunity to determine whether, under Booker, the sentence originally imposed would have been materially different, and, if so, to resentence.

Background

The jury was entitled to find the following facts. In February 2002, Williams flew from Ft. Myers, Florida to New York City's LaGuardia Airport. His checked baggage consisted of two cartons labeled "Cat's Pride Kitty Litter," which in fact contained thirteen or fourteen one-gallon jugs of concentrated liquid ammonia.¹ During the flight, vapors from one of the jugs escaped into the passenger compartment, and several passengers complained about irritation. Upon his return from a trip abroad in July 2002, Williams was arrested and questioned about his prior transportation of ammonia. He admitted that he was aware that the ammonia was highly concentrated and would have to be diluted prior to use.

A grand jury indicted Williams on two counts. Count One charged that he "willfully" delivered property containing hazardous material to an air carrier for transportation in air commerce, a violation of 49 U.S.C. § 46312(a)(1). Count Two charged that he "knowingly and recklessly" caused the transportation of such property in air commerce, a violation of 49 U.S.C. § 46312(a)(2). The jury convicted Williams only on Count 2.

The District Court calculated an applicable sentencing range under the then-mandatory Sentencing Guidelines. Starting from a base offense level of 8 applicable to transportation of hazardous materials in commerce, see U.S.S.G. § 2Q1.2, Judge Gershon first added a four-level enhancement for release of hazardous gasses into the atmosphere, see id. § 2Q1.2(b)(1)(B),² to which the Government and Williams had stipulated. Then, pertinent to the pending appeal, she added a nine-level enhancement for substantial likelihood of death or serious bodily injury, see id. § 2Q1.2(b)(2).³ The adjusted offense level of 21, in Criminal History Category I, yielded a sentencing range of 37-46 months. Defense counsel urged Judge Gershon to make a downward departure, citing 49 U.S.C. § 46312(b), which provides that knowledge of applicable regulations is not an element of an offense under section 46312(a) but "shall be considered in mitigation of the penalty." Counsel contended that this provision authorizes a departure for a defendant who lacks knowledge of the applicable regulations. Judge Gershon appears to have accepted counsel's reading of the statute, but declined to make a departure, stating her view that Williams had "deliberately snuck [the ammonia] on to the plane" and was "fully aware that he wasn't permitted to transport concentrated ammonia on a passenger aircraft." Judge Gershon's sentence included a prison term of 46 months, a $7,500 fine, and three years of supervised release.

On appeal, Williams primarily contends that his sentence violates his Sixth Amendment rights under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a ruling that Booker has now explicitly applied to the Guidelines. He also contends that the sentencing judge improperly penalized him based on a finding that was contrary to the jury's verdict.

Discussion

1. Sixth Amendment Error

In Booker, the Supreme Court made clear that a sentencing judge violates the Sixth Amendment by finding facts and mandatorily using them to enhance a sentence above the Guidelines range that would have been applicable based solely on facts found by the jury. ___ U.S. at ___, ___-___, 125 S.Ct. at 750, 755-56. The Court also implicitly ruled, by its remand of the sentence imposed on Ducan Fanfan, id. at 769, that a sentencing judge commits error by mandatorily imposing a Guidelines sentence even though it is based only on facts found by the jury.

In the pending appeal, the sentencing judge found as a fact that Williams had created a substantial likelihood of serious bodily injury or death, and, based on that finding, mandatorily made a nine-level enhancement to reach an adjusted offense level of 21. Williams' sentence therefore violates the Sixth Amendment, just as Booker's sentence did. See Crosby, 397 F.3d. at 109.

2. Alleged Use of "Acquitted Conduct"

Williams also contends that the sentencing judge's finding that he had "deliberately" brought the ammonia aboard the plane, "fully aware" that this action was prohibited, was impermissibly used in determining the sentence because the finding is contrary to the jury's acquittal on Count One, which charged "willful" conduct. In essence, he contends that the judge used "acquitted conduct," or, perhaps more precisely, "acquitted state of mind," in determining the sentence.

Prior to Booker, the Supreme Court had ruled that a sentencing judge could use acquitted conduct to determine a Guidelines sentence. See United States v Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). Whether or not Watts fully survives Booker, Judge Gershon's finding that Williams acted deliberately, by itself, provides no basis for disturbing the sentence. Even if her finding of "deliberate" action can be said to be contrary to the jury's implicit rejection of willfulness by acquitting on Count One, use of the finding did not support any mandatory calculation under the Guidelines, nor violate any of the judge's obligations to consider relevant factors, as required by 18 U.S.C. § 3553(a). See Crosby, 397 F.3d at 111-12. Judge Gershon used the finding as part of her reason for declining to make a discretionary departure authorized by the Guidelines, see U.S.S.G. § 2Q1.2, comment. (n.4), and properly "considered" Williams' state of mind in declining to "mitigat[e]" the penalty, as authorized by 49 U.S.C. § 46312(b). Although the sentence in its totality is erroneous in light of Booker, this finding did not constitute or contribute to any error.

3. Form of Remand

The Courts of Appeals (or panels of them) have adopted three different responses upon review of a sentence, imposed before Booker, where an unpreserved error violates the Sixth Amendment. All three responses reckon with the plain error doctrine, but apply it in different ways, resulting in different appellate outcomes that will yield different trial court outcomes in some circumstances. Some appellate courts have remanded for resentencing. See United States v. Davis, 397 F.3d 173, 2005 WL 334370 (3d Cir. Feb.11, 2005); United States v. Oliver, 397 F.3d 369, 2005 WL 233779 (6th Cir. Feb. 2, 2005); United States v. Hughes, 396 F.3d 374, 2005 WL 147059 (4th Cir. Jan.24, 2005). Some have affirmed. See United States v. Rodriguez, 398 F.3d 1291, 2005 WL 272952 (11th Cir. Feb.4, 2005); United States v. Bruce, 396 F.3d 697, 2005 WL 241254 (6th Cir. Feb.3, 2005). Our Court has remanded for consideration by the sentencing judge of whether resentencing is needed, and, if so, to resentence. See Crosby, 397 F.3d. at 105, 117. These various responses prompt us to analyze the application of the plain error doctrine in the context of a review of sentences, assess the three responses in light of that analysis, and explain our adherence to the form of a Crosby remand.

As authoritatively set forth by the Supreme Court, the plain error doctrine permits a trial court error, not properly preserved for appeal, to warrant appellate relief when four factors are present: there must be an error, the error must be "plain," the error must "affect[ ] substantial rights," and the error must "seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings." United States v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal quotation marks omitted); see United States v. Olano, 507 U.S. 725, 731-32, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The Court has identified these so-called "Olano" factors as required to implement Rule 52(b) of the Federal Rules of Criminal Procedure, which now provides: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Fed.R.Crim.P. 52(b); see Olano, 507 U.S. at 731, 735-36, 113 S.Ct. 1770 (referring to pre-2002 version of Rule 52(b)). The first three Olano factors derive from the wording of Rule 52(b), a rule adopted to codify prior practice, see United States v. Frady, 456 U.S. 152, 163 n. 13, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (citing Fed.R.Crim.P. 52(b) advisory committee's note). The fourth factor has also evolved from...