USA v. Williams

• Decision Date: 16 November 2010
• Docket Number: No. 09-3795.,09-3795.
• Citation: 624 F.3d 889
• Parties: UNITED STATES of America, Appellee, v. Josiah WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

624 F.3d 889

UNITED STATES of America, Appellee,

v.Josiah WILLIAMS, Appellant.

No. 09-3795.

United States Court of Appeals,Eighth Circuit.

Submitted: Sept. 23, 2010.

Filed: Nov. 16, 2010.

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Webb L. Wassmer, argued, Cedar Rapids, IA, for appellant.

Mark Tremmel, AUSA, argued, Sioux City, IA, Daniel C. Tvedt, AUSA, on the brief, Cedar Rapids, IA, for appellee.

Before LOKEN, HANSEN, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Josiah Malachi Israel Williams of one count of distributing, and aiding and abetting the distribution of, crack cocaine within 1,000 feet of a school. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 860; 18 U.S.C. § 2. On appeal, this court affirmed. United States v. Williams, 486 F.3d 377 (8th Cir.2007). The Supreme Court, 552 U.S. 1091, 128 S.Ct. 882, 169 L.Ed.2d 718 (2008), vacated the judgment and remanded for reconsideration in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). On remand, this court affirmed the conviction, but remanded for resentencing. United States v. Williams, 557 F.3d 556 (8th Cir.2009). After initially sentencing Williams to 168 months of imprisonment, the district court ¹ resentenced him to 140 months. Williams now appeals the new sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Williams was convicted of distribution of crack cocaine and aiding and abetting the distribution of crack cocaine within 1,000 feet of a school. ² He was originally sentenced to a within-range sentence of 168 months in September 2006. His final adjusted offense level was 30 and criminal history category was VI, resulting in an advisory guidelines range of 168-210 months of imprisonment. The district court stated that it had considered all the factors in 18 U.S.C. § 3553(a), and declined to vary from the guidelines based on the crack/powder cocaine sentencing ratio and an alleged sentencing disparity with Williams's accomplice Lamarr Parks. The court also stated that it reviewed the Presentence Investigation Reports of Parks and Maurice Malone, who were both convicted for their roles in the same drug transaction. The court found that Williams and the related defendants were not similarly situated because of differing criminal records and differing amounts of crack at issue in the three cases.

After this court affirmed, the Supreme Court vacated judgment and remanded for reconsideration in light of Kimbrough. On remand, this court affirmed the conviction, but remanded to the district court for resentencing. United States v. Williams, 557 F.3d 556 (8th Cir.2009).

Before sentencing, Williams moved to have the case reassigned from Chief Judge Linda R. Reade to Judge Mark W. Bennett, who had sentenced related defendants Malone and Parks, and for disclosure of Parks's Pre-Sentence Investigation Report (“PSR”). Chief Judge Reade denied both motions.

At resentencing, the district court determined a final offense level of 28, ³ with a criminal history category of VI, resulting in an advisory guidelines range of 140-175 months of imprisonment. Williams moved for a variance from the guidelines range based on the crack-to-powder cocaine ratio and to avoid unwarranted disparity with the sentences of his accomplices. Williams also asked the court to consider post-sentencing rehabilitation in determining a sentence.

The district court declined to vary from the guidelines range, and supplemented the record from the original sentencing hearing with a lengthy analysis of the sentencing factors found in 18 U.S.C. § 3553(a). The court acknowledged the discretion of district courts to vary from the advisory guidelines. The court noted that it had considered Williams's personal history, including his extensive criminal history of convictions and adjudications for drug-related offenses and violence. The court distinguished Williams from the other defendants sentenced by Judge Bennett, observing that unlike Parks and Malone, Williams “not only went to trial, but he lied at trial.” The court found that Williams's history of criminality and drug use since his teens presented a high risk of recidivism, which affects sentencing. See 18 U.S.C. § 3553(a)(2)(C) (requiring courts to consider the need for the sentence imposed “to protect the public from further crimes of the defendant”). Finally, the court noted that “even if I considered his post-offense rehabilitation or conduct in the institution, my sentence would not change or be any different.”

The district court resentenced Williams to a 140-month term. This appeal followed.

II.

Williams challenges the district court's denial of (1) his motion to transfer the case to the Judge Bennett, and (2) his motion to view the PSR and resentencing transcript of Lamarr Parks.

A.

A district court's denial of a motion to transfer the case to another judge is reviewed for abuse of discretion. See Moran v. Clarke, 296 F.3d 638, 648 (8th Cir.2002) (en banc) (motion for recusal of judge); United States v. Maynie, 257 F.3d 908, 915 (8th Cir.2001) (motion to transfer venue to another district). Williams argues that Chief Judge Reade abused her discretion in declining to transfer his case to Judge Bennett for resentencing, citing judicial efficiency and the need to avoid unwarranted sentencing disparities with his accomplices. According to Williams, the differing sentencing philosophies of the two judges regarding the crack/powder sentencing ratio placed Chief Judge Reade in the difficult position of “following her sentencing philosophy and creating unwarranted sentencing disparity between Mr. Williams and Mr. Parks based on the vagaries of which judge the cases were originally assigned to or deviating from that sentencing philosophy in this case to avoid unwarranted sentencing disparity.”

This court recognizes “the virtue of having the members of a criminal conspiracy sentenced, when possible, by the same district judge.” United States v. Lazenby, 439 F.3d 928, 934 (8th Cir.2006). On the other hand, “[p]erfect parity among the sentences imposed on the various members of a criminal conspiracy is no doubt impossible to achieve, given the complexity of the task.” Id. A defendant is entitled to be sentenced by a competent judge familiar with the case, but “beyond this litigants subject to the authority of the district court do not normally have any say as to the particular judge who acts for the court.” United States v. Colon-Munoz, 292 F.3d 18, 22 (1st Cir.2002); see also Hvass v. Graven, 257 F.2d 1, 5 (8th Cir.1958) (noting that “a litigant has no vested right to have his case tried before any particular judge”).

The timing of Williams's motion supports the government's argument that his motion for reassignment was judge-shopping, rather than reflecting concerns about judicial economy and the need to spare judges from compromising their philosophy of sentencing. The judicial economy argument actually cuts against Williams. Chief Judge Reade presided over his trial and originally sentenced him, making her the judge more familiar with the facts of Williams's case and his personal history and characteristics, including the claimed post-sentencing rehabilitation. Further, Williams sought reassignment to Judge Bennett only after remand from this court, not before his trial or original sentencing. Knowing that Judge Bennett granted Parks a downward variance to the mandatory minimum based on the crack/powder ratio, Williams understandably sought reassignment after Chief Judge Reade declined to vary downward at the original sentencing.

A motion to change judges is properly denied when it is “essentially a ‘judge shopping’ attempt” to have a case reassigned to another judge “in the hopes of obtaining a more favorable result.” See United States v. Urben-Potratz, 470 F.3d 740, 745 (8th Cir.2006); see generally Little Rock School Dist. v. Pulaski County Special School Dist. No. 1, 839 F.2d 1296, 1302 (8th Cir.1988) (28 U.S.C. § 455(a), the federal recusal statute, emphatically “does not provide a vehicle for parties to shop among judges”). A district court's sentencing philosophy cannot form the basis for reassignment to another judge. The district court did not abuse its discretion in denying Williams's motion to transfer the case.

B.

Williams argues that the district court abused its discretion in denying his motion for access to the PSR and the sentencing transcript of Lamarr Parks. Williams claims he needed these materials in order to compare sentences to show disparity under 18 U.S.C. § 3553(a)(6). The district court denied his motion, ruling that disclosure was “not necessary.”

A district court's decision whether to provide access to a PSR is reviewed for abuse of discretion. See United States v. Spotted Elk, 548 F.3d 641, 672 (8th Cir.2008); United States v. McKnight, 771 F.2d 388, 391 (8th Cir.1985). While Fed.R.Crim.P. 32 mandates the disclosure of the PSR to the defendant, it does not address disclosure to a third party. There must be “some showing of special need” before a district court releases a PSR to a third party. Spotted Elk, 548 F.3d at 672 (8th Cir.2008); see also United States v. Jewell, 614 F.3d 911, 921-22 (8th Cir.2010) (describing this court's “special need” standard as similar to the Second Circuit's requirement of “a threshold showing of a good faith belief that a co-defendant's PSR contains exculpatory evidence not available elsewhere.”) (citing United States v. Molina, 356 F.3d 269, 274-75 (2d Cir.2004)).

PSRs contain sensitive information, and “are generally treated as confidential.” United States v. Shafer, 608 F.3d 1056, 1066 (8th Cir.2010). After a showing of special need, the district court should conduct an in camera review of the requested report, and then disclose exculpatory or impeachment material as appropriate. See id.; United States v. Garcia, 562 F.3d 947, 953 (8th Cir.2009) (holding that the...