U.S. v. Williams

• Decision Date: 30 June 2004
• Docket Number: No. 02-2084.,02-2084.
• Citation: 374 F.3d 941
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Christopher WILLIAMS, also known as "Frenchie," Defendant-Appellant.

374 F.3d 941

UNITED STATES of America, Plaintiff-Appellee, v. David Christopher WILLIAMS, also known as "Frenchie," Defendant-Appellant.

No. 02-2084.

United States Court of Appeals, Tenth Circuit.

June 30, 2004.

COPYRIGHT MATERIAL OMITTED

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the briefs), Albuquerque, NM, for Plaintiff-Appellee.

Phillip P. Medrano, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

Before LUCERO, O'BRIEN and TYMKOVICH, Circuit Judges.

O'BRIEN, Circuit Judge.

David Williams, the subject of a reverse sting operation by United States Drug Enforcement Administration (DEA) agents in Las Cruces, New Mexico, was convicted of Attempt to Possess With Intent to Distribute More than 100 Kilograms of Marijuana in violation of 21 U.S.C. § 841(b)(1)(B), and Conspiracy to Possess with Intent to Distribute More than 100 Kilograms of Marijuana in violation of 21 U.S.C. § 841(b)(1)(B), 21 U.S.C. § 846 and 18 U.S.C. § 2. He was sentenced to 235 months imprisonment on each count, to run concurrently, and eight years supervised release. Williams appeals his conviction and sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, remand for rulings on disputed factual issues affecting the sentence and, if necessary, resentencing.

BACKGROUND

In the early summer months of 1997, undercover DEA Agent Luis Medina, was introduced over the telephone to Williams — a.k.a. "Frenchie" — through a confidential informant named "George." Agent Medina portrayed himself as a large-scale marijuana distributor operating out of Las Cruces, New Mexico, looking for a purchaser.¹ Williams indicated he could resell the product through his operation in New York. Agent Medina and Williams communicated extensively by telephone and engaged in approximately thirty to forty conversations over the course of the summer.² The conversations included discussions regarding the purchase and sale of quantities of marijuana ranging from 100 pounds up to 2,500 pounds at a price of $200 per pound.³ Williams indicated that once the marijuana was taken to New York he could sell it for $500 to $600 per pound. He also stated he could sell about 1,000 pounds per week once he got "warmed up."

During these conversations, Williams repeatedly asked Agent Medina to travel to New York and meet with him to see how he operated. Agent Medina declined and indicated he would rather Williams travel to Las Cruces. Williams said he would, or he would send someone to meet with Agent Medina.

On August 27, 1997, after several failed plans to meet, Williams told Agent Medina one of his associates would call. Minutes later, Agent Medina received a call from a man identifying himself as "Mark,"⁴ who said he was associated with "Frenchie" and wanted to meet. They arranged a meeting for the next day. After picking up Mark at his hotel in El Paso, Agent Medina drove to a roadside park in New Mexico. En route to the park, Mark told Agent Medina he was there to ensure everything was ready for the sale. He reported that Williams indicated the deal was for 1,000 pounds of marijuana at $200 per pound.

Once at the park, Agent Medina showed him a thirty pound bundle of marijuana. After his inspection, Mark said it looked good and that he would relay his impression to Williams. The two continued to discuss possible deals. Eventually, Agent Medina wrote down a quantity and price for marijuana on the back of a business card.⁵ The first entry provided 1,000 pounds of marijuana at $250,000 ($200 per pound and $50 per pound for transportation) for which Agent Medina requested payment prior to delivery. The second entry indicated Agent Medina would front 1,500 pounds of marijuana to Williams for a total of 2,500 pounds. Mark informed Agent Medina that Williams had the money, this was a good deal, and he did not know why Williams was delaying completion of the transaction.

After this meeting, Williams called Agent Medina and told him he had talked with Mark who said "everything looks good." (R., Vol.III, Ex. 13A.) Williams stated he would meet with Agent Medina in Las Cruces the next weekend, but when pressed for a more definite commitment regarding the specific quantity Williams was willing to buy, Williams said he wanted to take it "one step at a time" so he would "know what moves to make" when he arrived in Las Cruces. (Id. at 2.) He did not travel to Las Cruces that weekend and later apologized for not showing up, claiming his attention was diverted by a newly-arrived load of marijuana.

After several more telephone conversations, Williams finally arrived in El Paso, Texas on September 17, 1997, with three business associates, including Mark. At Williams' hotel bar, he informed Agent Medina that he wanted to purchase 100 pounds of marijuana immediately to send to New York on a commercial airline. He would then use the proceeds from the sale (estimated at $60,000) for purchase of an additional 300 pounds. Agent Medina also offered to front Williams an additional 200 pounds, but told Williams he wanted him to provide some money as a demonstration of his sincerity. In response, Williams pulled two rolls of bills from his pockets, which he indicated was approximately $10,000.00. Agent Medina then took Williams to the parking lot, showed him a sample of the marijuana and told Williams it would be delivered the next day but he needed a down payment of $5,000. Williams gave Agent Medina the down payment.

The following day, Williams called Agent Medina from El Paso saying he was ready to complete the transaction but had no transportation to Las Cruces. Agent Medina sent George to get him. When George arrived, Williams said he changed his mind and wanted to conduct the transaction in El Paso. When Williams would not let George out of the hotel room, George called Agent Medina to report the situation. Agent Medina spoke with Williams and convinced him to go with George and finish the deal in Las Cruces. Concerned for George's safety, Agent Medina kept in telephone contact during the drive to Las Cruces. On the way, George reported Williams had commandeered the vehicle and was driving away from Las Cruces. Again Agent Medina told Williams the transaction needed to occur in Las Cruces, but because it did not appear the deal would be completed, he would refund Williams' $5,000. Eventually, these negotiations resulted in Williams allowing George to drive to Las Cruces. In a surprise move, however, the car pulled into a parking lot across the street from the transaction's designated location. After Williams and one of his companions exited, George drove across the street where Agent Medina waited. Law enforcement officials arrested the car's occupants. Witnessing the arrests from across the street, Williams and his companion ran from the scene. He was found a short time later hiding in a nearby hotel.

PROCEDURAL BACKGROUND

On January 7, 1997, Williams pled guilty to a two-count indictment charging him with attempted possession and conspiracy to possess a controlled substance with the intent to distribute. After agreeing to assist the DEA in further investigations, Williams filed an unopposed motion for release. Granting the motion, the district court imposed specific conditions, including: (1) restricting Williams' travel to the county of his residence in New Jersey, with the only exception being travel to New Mexico for court appearances; and (2) requiring him to contact his attorney on a regular basis, appear at all proceedings as required, and surrender for service of any sentence imposed. On April 6, 1998, Williams failed to appear for sentencing and an arrest warrant was issued. He also failed to maintain contact with his attorney and eventually left the country without permission — traveling to Jamaica, London, and back to the United States. He was arrested in Michigan on November 21, 2000, for a misdemeanor. After checking his records, Michigan law enforcement returned him to New Mexico.

Prior to fleeing, Williams cooperated with government agents and testified for the United States in the Southern District of Texas. He also participated in undercover operations in New York. He claims his cooperation resulted in threats upon his life which forced him to flee, but even while absent from the country he provided assistance and information to the United States. Prior to sentencing, when Williams learned the United States would not move for a downward departure for substantial assistance, he filed a motion to withdraw his guilty plea.⁶ At the motion hearing, the district court judge opined the government's refusal to file a motion for a downward departure was "unduly hard" on Williams. (Id. at 10, 16.) The court granted Williams' motion to withdraw the guilty plea and the matter proceeded to trial.

The jury found Williams guilty of the original charges. The presentence investigative report (PSIR) recommended he be sentenced at a base offense level of 32 because the offense "involved negotiations for 2,500 pounds of marijuana." USSG § 2D1.1(a)(3) (2000). It also provided a two level obstruction of justice enhancement for absconding. See USSG § 3C1.1. Williams objected to both recommendations and sought a downward departure based upon substantial assistance. The district court rejected Williams' arguments and adopted the PSIR's factual findings and conclusions.

Williams raises four issues on appeal. He contends the district court erred by: 1) finding the "agreed upon" quantity of marijuana was 2,500 pounds; 2) enhancing his sentence for obstruction of justice under USSG § 3C1.1 (2000); 3) failing to make a downward departure for substantial assistance; and, 4) failing to instruct the jury on his proffered affirmative defense — withdrawal from a conspiracy.

1. Quantity of Marijuana

"In an offense involving an agreement to sell a controlled substance, the agreed...