U.S. v. Williams

• Citation: 910 F.2d 1574
• Decision Date: 27 August 1990
• Docket Number: No. 89-3084,89-3084
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph N. WILLIAMS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1574

910 F.2d 1574

UNITED STATES of America, Plaintiff-Appellee, v. Joseph N. WILLIAMS, Defendant-Appellant.

No. 89-3084.

United States Court of Appeals Seventh Circuit.

Argued April 19, 1990.

Decided Aug. 27, 1990.

Daniel P. Bach, Asst. U.S. Atty., Office of the U.S. Atty., Madison, Wis., for plaintiff-appellee.

Kenneth H. Hanson, Decker & Associates, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr. and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

This is a direct appeal from a federal criminal conviction. After a jury trial, the appellant, Joseph Williams, was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). The district court sentenced him to 27 months imprisonment, followed by 3 years of supervised release. Mr. Williams filed a timely appeal. For the following reasons, we affirm the judgment of the district court.

I FACTS

Mr. Williams was the subject of an undercover investigation during 1988 and 1989. Paul Harding, an agent with the Bureau of Alcohol, Tobacco & Firearms, met with Mr. Williams on a number of occasions at the bus that Mr. Williams occupied as living quarters. Mr. Williams claimed to Agent Harding that he had no trouble handling a firearm, referred to "his .44," and also described how to manufacture ammunition for a .44 magnum weapon. On April 12, 1989, Agent Harding obtained a search warrant for the bus. The warrant was executed on April 20, 1989. The officers conducting the search discovered a loaded .44 caliber magnum in the lower right hand drawer of a desk located in the bus. Mr. Williams subsequently was indicted for being a felon in possession (on or about April 20, 1989) of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1).

The defendant introduced evidence at trial that the owner of the bus (Henry Yates) was actually the owner of the gun. Yates testified that, during the day on April 19, 1989, he took the gun to an area near the bus and fired at tree stumps. He went into the bus, cleaned the gun, and placed it in the desk while Mr. Williams was not present. He left it there inadvertently and had not removed it by the time the search warrant was executed the next day. Another witness, Phyllis Orlando, testified that she had looked into the drawer the day before the search warrant was executed and did not see a gun.

The government introduced testimony at trial from Agent Harding who said that he met with Mr. Williams over a four month period and that, on January 9, 1989, Mr. Williams told Agent Harding that he had fired .44 magnum guns and that he had no problems firing such guns. On January 18, 1989, Agent Harding again met Mr. Williams at the bus. During this meeting, Mr. Williams told Agent Harding that he could handle .44 magnum guns. Agent Harding testified that the defendant then reached toward the top drawer of the desk and, before actually opening the drawer, turned to Agent Harding and pretended as if he were pulling a trigger on an imaginary gun. They then went to a nearby van. Mr. Williams pointed out bullet holes in the van and claimed that he had fired his .44 magnum into the van.

Agent Harding met once again with Mr. Williams on February 7, 1989. During their conversation Mr. Williams discussed how the .44 magnum operated. He pointed out a bullet hole in the desk that he claimed was an accidental discharge of the gun. At no point during any of these meetings did Mr. Williams actually show a gun to Agent Harding. However, several individuals testified at trial that they did see Mr. Williams in possession of a gun. One witness Jonathan Anties, identified a firearm as the one shown to him by Mr. Williams in October 1988. Mr. Anties testified that Mr. Williams removed a .44 magnum from his desk drawer while the two were in Mr. Williams' bus. In addition, Mr. Anties testified that he saw Mr. Williams on 20 to 40 occasions with the firearm in his possession. Other witnesses, including neighbors and friends, testified to seeing Mr. Williams with a .44 magnum firearm during 1988 and 1989.

The jury found Mr. Williams guilty. The district court received the probation office's sentence calculations which indicated a range of 18 to 24 months imprisonment based on an offense level of 9 and a criminal history category of V. The district court departed upward from the guidelines, determining that the criminal history category did not reflect adequately the seriousness of Mr. Williams' past criminality. That particular finding was based, at least in part, on two felony convictions in 1966 and 1967 which were not considered in determining the criminal history category. The district court concluded that the correct criminal history category should be VI and sentenced Mr. Williams to 27 months imprisonment. Mr. Williams filed a timely appeal.

II ANALYSIS

A. Sufficiency of the Evidence

Mr. Williams asserts that the "unimpeached" evidence of his witnesses indicated that Yates owned the firearm and that Yates normally kept the firearm locked in his bedroom. Appellant's Br. at 11. Furthermore, Mr. Williams stresses the story that Yates told at trial: that Yates came into Mr. Williams' bus to use an amateur radio, placed the firearm in a drawer by the radio, and forgot to take the firearm with him when he left. Based on this evidence, Mr. Williams claims that he did not have knowing possession of the firearm as required under 18 U.S.C. Sec. 922(g)(1).

A defendant bears a heavy burden when he challenges the sufficiency of evidence. " 'The test is whether after viewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " United States v. Herrero, 893 F.2d 1512, 1531 (7th Cir.) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis supplied by Jackson court))), cert. denied, --- U.S. ----, 110 S.Ct. 2623, 110 L.Ed.2d 644 (1990). Based on this demanding test, we cannot say that the evidence submitted to the jury made conviction impermissible. The evidence included eyewitness accounts tying Mr. Williams to the firearm and statements made by Mr. Williams to an undercover police officer bragging about owning and firing a .44 magnum. Faced with conflicting stories from a number of witnesses who claimed to see Mr. Williams in possession of the firearm and Mr. Yates' testimony to the contrary, it is quite possible that the jury decided to believe that Mr. Williams possessed the firearm. The evidence supporting such a conclusion is certainly sufficient to support Mr. Williams' conviction under the standard we must apply.

B. Upward Departure

According to the application of the Sentencing Guidelines, Mr. Williams was classified with a criminal history category of V. Combined with his offense level of 9, his sentencing range was 18-24 months. The district court determined that the criminal history category did not reflect adequately the seriousness of Mr. Williams' offenses and his propensity for committing additional crimes in the future. The court therefore increased the criminal history category from V to VI, yielding a sentencing range of 21-27 months. We examine the district court's departure from the Sentencing Guidelines "to determine whether it was reasonable in light of the district court's explanations for its departure at the time of sentencing." United States v. Gaddy, 909 F.2d 196, 198 (7th Cir.1990). We review the grounds stated for departure under the de novo standard, but accept factual findings supporting the departure unless clearly erroneous. Finally, we must determine whether the amount of departure was reasonable. Id. at 198-199; United States v. Williams, 901 F.2d 1394, 1396 (7th Cir.1990); see also United States v. Gardner, 905 F.2d 1432, 1434 (10th Cir.1990).

The district court decided to depart because, in its view, the criminal history category did "not adequately set forth the criminal history of this Defendant." R.61 at 305. Mr. Williams claims that the departure was erroneous in two respects: the district court should not have considered two convictions that were more than fifteen years old, ¹ and the court improperly counted arrests that did not result in conviction.

1. General principle: Guideline Sec. 4A1.3

Guideline Sec. 4A1.3 allows the district court to depart from the sentence "[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct...." Some types of information, such as arrest records, may not be considered in departing upward. Beyond what may not be considered, the guidelines provide only partial guidance by setting forth a nonexclusive list of what might be "reliable information." The guidelines direct that, after reviewing the evidence of a defendant's past criminality and propensity for future crime, the district court may "conclude that the defendant's criminal history was significantly more serious than that of most defendants in the same criminal history category, and therefore consider an upward departure from the guidelines." Guideline Sec. 4A1.3.

2. Convictions more than fifteen years old

The district court took into consideration two felonies--unlawful taking of a motor vehicle and forgery--which were not included in the calculus for determining Mr. Williams' criminal history category because they occurred more than fifteen years prior to the current offense. See Guideline Sec. 4A1.2(e)(1). The guidelines provide two ways for the district court to consider the old convictions for purposes of upward departure. First, application note 8 to Sec. 4A1.2 allows the court to consider older convictions "[i]f the government is able to show that [the] sentence ... is evidence of similar misconduct" or that ...