United States v. Williams

• Decision Date: 08 September 2022
• Docket Number: 21-6061
• Citation: 48 F.4th 1125
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Gregory Yarnell WILLIAMS, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

48 F.4th 1125

UNITED STATES of America, Plaintiff - Appellee,
v.
Gregory Yarnell WILLIAMS, Defendant - Appellant.

No. 21-6061

United States Court of Appeals, Tenth Circuit.

FILED September 8, 2022

Laura K. Deskin, Research & Writing Specialist (Susan M. Otto, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, Oklahoma, for Defendant-Appellant.

Jason M. Harley, Assistant United States Attorney (Robert J. Troester, United States Attorney with him on the brief), Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BALDOCK and ROSSMAN, Circuit Judges.

ROSSMAN, Circuit Judge.

Gregory Yarnell Williams appeals his sentence after pleading guilty to possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841 and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He raises two claims of error. First, Mr. Williams contends his sentence is procedurally unreasonable because the district court incorrectly calculated his base offense level under the advisory Sentencing Guidelines. Mr. Williams claims the district court clearly erred in its drug-quantity calculation by holding him accountable for alleged packages of methamphetamine on which the government presented no evidence. Second, he asserts the district court imposed an illegal sentence by erroneously applying the Armed Career Criminal Act (ACCA) enhancement. According to Mr. Williams, his prior Oklahoma convictions for distributing a controlled dangerous substance were not categorically "serious drug offenses" under 18 U.S.C. § 924(e)(2)(A)(ii) because his state offenses applied to hemp, and hemp was not a federally controlled substance at the time of his federal offense.

We agree with Mr. Williams on both issues. We vacate the judgment and remand for resentencing.

I. Background

A. Factual Background

In May 2020, the U.S. Postal Inspection Service (USPIS) flagged a Priority Mail Express package addressed to 104 SE 39th Street in Oklahoma City. USPIS identified the package as suspicious because it was shipped from San Bernardino, California, a known source area of controlled substances, and the sender/recipient names were not associated with the listed addresses. Investigators from USPIS provided surveillance as the package was delivered to the 39th Street address. They observed a man later identified as Mr. Williams pick up the package and

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leave the residence in an SUV about 40 minutes later.

On June 2, 2020, investigators intercepted another suspicious Priority Mail Express package mailed from San Bernardino to the 39th Street address. A drug dog indicated the package contained narcotics. After obtaining a search warrant, investigators opened the package, found suspected methamphetamine in vacuum-sealed bundles, and then repackaged it for delivery.

On June 3, the package was delivered to the 39th Street address under surveillance. Upon delivery, law enforcement officers saw Mr. Williams take the package into the house and, shortly thereafter, leave in his SUV. Officers stopped the SUV, arrested Mr. Williams, and found him in possession of about $1,800 in cash. Pursuant to a warrant, officers searched the 39th Street address and found the resealed package, two scales, a heat sealer, a surveillance system, and a loaded revolver. They also found an empty package from San Bernardino dated April 22, 2020.

Subsequent testing showed the package delivered on June 3 contained 1,720.54 grams of a substance containing methamphetamine with a purity level of 71%. Thus, it contained approximately 1,222 grams of actual methamphetamine.

B. Procedural Background

A grand jury indicted Mr. Williams on three counts: (1) possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) ; (2) maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) ; and (3) felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Mr. Williams pled guilty without a plea agreement to counts one and three.

1. The Presentence Report and Objections

According to the presentence investigation report (PSR), investigators reviewed United States Postal Service (USPS) records and concluded that, between January 6 and June 1, 2020, seven parcels ranging in weight from about one to five pounds were delivered to the 39th Street residence from California, in addition to the package intercepted on June 3. The 39th Street residence belongs to Mr. Williams’ brother. Mr. Williams lived with his common-law wife at 1312 NE 19th Street in Oklahoma City. Investigators determined similar parcels from California had been mailed directly to Mr. Williams’ residence on April 29, May 22, and May 28, 2020—specifically three packages weighing three pounds each.

The PSR determined the applicable guideline for Mr. Williams’ drug count was U.S.S.G. § 2D1.1. Under that guideline, the base offense level is driven by the type and quantity of drugs involved in the offense, id. § 2D1.1(a)(5), (c), including all relevant conduct, id. cmt. n.5 ("Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level." (citing U.S.S.G. § 1B1.3(a)(2) (Relevant Conduct))). To calculate drug quantity, the PSR started with the 1,222 grams of actual methamphetamine recovered on June 3 from the package intercepted at the 39th Street address. It then added the three packages mailed to Mr. Williams’ house at 19th Street. Importantly, as we will explain, the PSR disclaimed reliance on the seven other packages mailed to the 39th Street address. The PSR concluded "there was insufficient information to determine that the additional [seven] parcels mailed to the [39th Street] residence contained narcotics attributable to the defendant." R. vol. 2 at 12. The 1,222 grams of actual methamphetamine

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equaled 24,440 kilograms of converted drug weight; the other 9 pounds, or 4.08 kilograms, equaled 8,160 kilograms for a total converted drug weight of 32,600 kilograms.¹ That total amount of converted drug weight—at least 30,000 kilograms—set Mr. Williams’ base offense level at 36. See § 2D1.1(c)(2). After applying two enhancements, the PSR determined Mr. Williams’ total offense level on count one was 40.

As to count three, the § 922(g) violation, the PSR determined a cross-reference to the drug guideline was applicable. Thus, the total offense level from the drug count, 40, also applied to count three.

The PSR reported Mr. Williams’ criminal history, including three prior Oklahoma convictions for possession with intent to distribute a controlled dangerous substance in 1996, 1997, and 2003. According to the PSR, each of these convictions was a "serious drug offense" under § 924(e)(2)(A)(ii) and therefore Mr. Williams was subject to an enhanced sentence under the ACCA. The enhancement increased the statutory range on his § 922(g) conviction from 0-10 years of imprisonment to 15 years to life imprisonment. Id. § 924(e)(1). However, it did not affect his total offense level under the Guidelines.

Before sentencing, Mr. Williams objected to the PSR's drug-quantity calculation. Mr. Williams specifically contested the PSR's reliance on the three packages sent to his residence on 19th Street. He disputed these packages contained methamphetamine, and even if they did, he contended the weights determined by the PSR overestimated drug quantity because they failed to account for packaging material. Recall, the PSR had disclaimed reliance on the seven packages mailed to the 39th Street address. According to Mr. Williams, counting only the package actually intercepted on June 3 and not the weight from the three contested packages sent to his residence, the base offense level should be 34 (not 36 as calculated in the PSR).

Mr. Williams also objected to the ACCA determination. He asserted his prior convictions were not categorically "serious drug offenses" under the ACCA and challenged the PSR's contrary conclusion. According to Mr. Williams, his Oklahoma offenses were overbroad because they applied to hemp, which is not a federally controlled substance.

2. Sentencing Hearing

At the start of the sentencing hearing, the district court sought to clarify precisely what packages the government was attributing to Mr. Williams:

As I understand it from the presentence report, Mr. Williams is being held accountable for the package that was actually seized, as well as the three packages that were mailed to the house that he shares with his common-law wife. Is that a correct understanding of the facts? But that he is not being held responsible for some of the other suspicious packages, I'll say, that were noted and found, which were mailed to the brother's house where the package that was searched and seized was mailed; is that correct?

R. vol. 3 at 13.

The government confirmed the district court's understanding, "That's correct, Your Honor." Id. The government further explained, "We know now, post-arrest, and you will hear evidence on this today—probation doesn't have this—there were

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eight total packages from San Bernardino." Id. at 17.

"And does that eight include the three that are at issue?" the district court asked. Id. at 18. "Yes," the government confirmed. Id.

As the government now concedes, it did not put on any evidence at the sentencing hearing about the three packages delivered to Mr. Williams’ house on 19th Street that were counted in the PSR and objected to by Mr. Williams—that is, "the three that [were] at issue." Aplee. Br. at 16. Instead, the government only introduced evidence about the eight packages delivered to the 39th Street address from San Bernadino—including the package initially flagged as suspicious on May 19 and the package actually intercepted on June 3—plus a...