United States v. Williams, 18-3318

• Decision Date: 11 February 2020
• Docket Number: No. 18-3318,18-3318
• Citation: 949 F.3d 1056
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randy WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

949 F.3d 1056

UNITED STATES of America, Plaintiff-Appellee,

v.Randy WILLIAMS, Defendant-Appellant.

No. 18-3318

United States Court of Appeals, Seventh Circuit.

Argued December 6, 2019

Decided February 11, 2020

Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Alexander James Kasner, Anna Tsiotsias, Attorneys, Williams & Connolly LLP, Washington, DC, for Defendant-Appellant.

Before Rovner, Brennan, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

On July 28, 2016, two men entered a Sprint store with a gun, threatened and zip-tied all witnesses, grabbed some merchandise, and fled the store in two vehicles. Randy Williams was one of the getaway drivers. He was caught and indicted for obstruction of commerce by robbery under 18 U.S.C. § 1951.

Williams pleaded not guilty. Judge Colin S. Bruce presided over his jury trial, and, on June 14, 2018, the jury found Williams guilty. A few months later, it became public that Judge Bruce had engaged in ex parte communications with members of the United States Attorney’s Office for the Central District of Illinois (the "Office"). As a result, all criminal cases assigned to Judge Bruce were reassigned to other judges. Williams’s case was reassigned to now Chief Judge Darrow who presided over his sentencing hearing and sentenced him to 180 months’ imprisonment.

Williams now appeals his conviction and sentence. He argues that Judge Bruce’s ex parte communications with the Office violated his due process rights and the federal recusal statute, warranting a new trial. We conclude that Judge Bruce did not violate Williams’s due process rights on the facts before us. And although Judge Bruce’s conduct created an appearance of impropriety violating the federal recusal statute, there is no evidence of actual bias in this case to justify a new trial.

As to his sentence, Williams contends that he is entitled to a new sentencing hearing because Chief Judge Darrow improperly found that he was a career offender and was subject to a firearm enhancement. Williams does not qualify as a career offender, but the district court’s finding otherwise was not plain error. Chief Judge Darrow thoroughly considered the § 3553(a) factors, made clear that she would impose the same sentence even if the career offender provision did not apply, and explained her reasons for this position. Because there was sufficient evidence regarding the use of a firearm during the crime, we also hold that the district court did not err in applying a firearm enhancement. We affirm his conviction and sentence. We also grant Williams’s unopposed motion to supplement the record on appeal.

I. Background

In June 2018, Judge Bruce presided over Williams’s trial where a jury found him guilty of robbery. At trial, Assistant United States Attorneys Elham Peirson and Ryan Finlen represented the government with the assistance of paralegal Staci Klayer.

Before his appointment to the district court, Judge Bruce had worked as a federal prosecutor in the Office for twenty-four years and, not surprisingly, maintained friendships with some of his former colleagues while on the bench. In August 2018, a newspaper reported that Judge Bruce had engaged in ex parte communications with the Office during the criminal trial of United States v. Nixon , a case over which Judge Bruce presided. In those emails, Judge Bruce criticized one of the the prosecutors as being "entirely unexperienced" turning a "slam-dunk" case into a "60-40" for the defendant. As a result of the news coverage and the aftermath, then Chief Judge Shadid removed Judge Bruce from all cases involving the Office.

The Judicial Council of the Seventh Circuit appointed a Special Committee to review the judicial misconduct complaints filed against Judge Bruce based on his ex parte communications with the Office. The Special Committee requested and reviewed documents, conducted interviews, and held a hearing at which Judge Bruce testified. In response to the Special Committee’s document request, the Office conducted a review to determine whether other ex parte communications existed. It subsequently disclosed to the Special Committee approximately 1,230 communications between Judge Bruce and members of the Office. The Special Committee determined that, although many of them appeared to be innocuous, approximately 100 of these communications constituted potential ex parte communications about cases pending before Judge Bruce. Some of them concerned warrant approvals, successful appeals in one of Judge Bruce’s cases, scheduling matters, or a defendant’s conduct on bond, often with Klayer. In others, Judge Bruce addressed former colleagues, including Klayer, by nicknames and congratulated them on favorable outcomes. And in some communications, Judge Bruce reassured former colleagues after they made filing mistakes. In one instance, he stated "My bad. You’re doing fine. Let’s get this thing done." In another, he suggested that Klayer call the First Assistant "and advise" while noting that luckily "they have an understanding judge who doesn’t get angry." None of these communications pertained to Williams’s case.

The Special Committee then submitted to the Judicial Council a report explaining its findings and recommendations, which the Judicial Council adopted. The Special Committee saw "no evidence and received no allegation that Judge Bruce’s conduct or ex parte communications impacted any of his rulings or advantaged either party." In re Complaints Against Dist. Judge Colin S. Bruce , Nos. 07-18-90053, 07-18-90067 (7th Cir. Jud. Council May 14, 2019). "And with the exception of the Nixon -related and appeal-related emails," the Special Committee saw "no evidence of Judge Bruce discussing the merits of pending cases with the Office ex parte." Id. The Judicial Council publicly reprimanded Judge Bruce and kept him unassigned from any cases involving the Office until September 1, 2019.

Months before the Special Committee issued its report, Williams’s case was reassigned to Chief Judge Darrow, who presided over his sentencing hearing. Williams and his counsel reviewed Williams’s revised presentence investigation report ("PSR") and had no objections to it. The PSR calculated a total offense level of 32 and a criminal history category of VI, noting that "as the defendant is a career offender, a criminal history category of VI shall apply pursuant to USSG § 4B1.1(b)." The advisory Guidelines range was calculated at 210 to 240 months, and both sides agreed to the district court’s recitation of the Guidelines provisions. Williams’s counsel never requested a below Guidelines sentence; he requested a sentence at the bottom of the Guidelines range.

At sentencing, Chief Judge Darrow considered the § 3553(a) factors. She noted that this offense is "as serious as it gets." The offense involved terrorizing individuals at gunpoint with explicit threats and physically restraining them with zip-ties just to steal cellphones. The district court determined that the following enhancements were adequate: 20 levels for the robbery, 6 levels for the firearm, 2 levels for physically restraining the victims, and 1 level for the value of stolen property.

For his role in the offense, the district court determined that a role adjustment was not appropriate. Williams fully participated in the crime and knew what the other participants were doing inside the store. Although Williams’s conduct was not as culpable as the person who used the gun during the robbery, he was more culpable than the person who merely loaned them the car.

The district court next considered Williams’s personal history and characteristics. The district court noted that he is a career offender because he has prior convictions for delivery of a controlled substance and aggravated sexual abuse. She stated that the resulting Guidelines range may be too high given his age and criminal record. But she concluded that Williams still represents a "very strong recidivism concern" in part because of his criminal history. "[T]here’s a trend here of more serious criminal conduct" over time "and this is the most serious." Williams had also violated every term of supervised release, except the most recent one. Given her duty to protect the public, a hope that a longer sentence would deter him from committing future crimes, and his role in this serious offense, the district court sentenced him to 180 months’ imprisonment. In imposing a below Guidelines sentence, the district court expressly stated that she would impose the same sentence even if the career offender provision did not apply. Williams now appeals both his conviction and sentence.

II. Discussion

A. Ex Parte Communications

Williams argues that Judge Bruce’s ex parte communications with the Office violated both his due process rights and the federal recusal statute, warranting a new trial. Although none of the ex parte communications concerned Williams’s case, some of them were either about or involved Peirson, the Office’s Assistant United States Attorney who prosecuted Williams’s case, and Klayer, the Office’s paralegal assisting with his trial. Because Judge Bruce’s ex parte communications were disclosed after Williams’s trial, we review his claims de novo. See United States v. Atwood , 941 F.3d 883, 885 (7th Cir. 2019).

1. Due Process Clause

The Due Process Clause guarantees litigants an impartial judge and a fair trial. See Bracy v. Gramley , 520 U.S. 899, 904–05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Courts presume that judges are honest, upright individuals who rise above biasing influences. Franklin v. McCaughtry , 398 F.3d 955, 959 (7th Cir. 2005). But that presumption is rebuttable. Id. at 960. Whether a judge should be recused is an objective inquiry; courts do not ask "whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for...