United States v. Williams

976 F.3d 781

UNITED STATES of America, Plaintiff-Appellee,

v.Christopher WILLIAMS, Defendant-Appellant.

No. 19-2235

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2020

Filed: September 30, 2020

Rehearing and Rehearing En Banc Denied November 17, 2020

Rebecca L. Kurz, Asst. Fed. Public Defender, Kansas City, MO (Laine Cardarella, Fed. Public Defender, on the brief), for defendant-appellant.

J. Benton Hurst, Asst. U.S. Atty., Kansas City, MO (Timothy A. Garrison, U.S. Atty., on the brief), for plaintiff-appellee.

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.

BENTON, Circuit Judge.

Christopher R. Williams pled guilty, without a plea agreement, to possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court¹ sentenced him to 190 months in prison pursuant to the Armed Career Criminal Act (ACCA). He appeals, challenging his sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

On September 13, 1995, Williams distributed cocaine base and was convicted of one count of violating RSMo § 195.211 in May 1999. On or about July 25, July 27, and August 1, 2000, Williams sold cocaine and was convicted of three counts of violating RSMo § 195.211 in October 2002. The presentence investigation report (PSR) concluded that Williams had "at least three prior convictions for a serious drug offense, which were committed on different occasions," thus authorizing an enhanced sentence under the ACCA—a statutory minimum of 180 months and a guidelines range of 180-210 months (which included a 3-level reduction for acceptance of responsibility).

Williams, by counsel, objected to the PSR's conclusion, arguing "[i]t was an ongoing business of dealing drugs" and that "because they were resolved the same day they constitute one continuous occasion and therefore he would only have two controlled substance convictions that count."

Before sentencing, Williams moved to proceed pro se . He asked the court to relieve his counsel because he thought she had not filed his "requested pretrial motion, in order to preserve Williams claims of relief before the United States Appellate Court, if necessary." He also claimed she had not "filed any objections to the presentence report, in accordance with Rule 32." Williams feared he had not objected to the PSR and would lose his right to appeal. His memorandum in support of his motion argued that the evidence did not support another (non-ACCA) enhancement and that he was not an armed career criminal. The district court denied the motion.

At sentencing, Williams renewed his motion to proceed pro se , again seeking to preserve his objections to the PSR. His counsel said the objections were already raised on his behalf, which she was prepared to argue. Finding the objections already raised, the district court denied the motion. After argument, the district court overruled the objections. The government and defense counsel both recommended a 15-year sentence, the bottom of the guidelines range.

Offered a chance to speak, Williams said that he "did not get a chance to place my objection to the court of my Rule 32," that counsel refused to present his objections, and that when he asked her to withdraw, she refused. He repeated his fear about preserving his claims. The government asked to reconsider its sentencing recommendation and suggested a Faretta hearing to determine whether Williams could represent himself. The district court reminded Williams that it overruled his objections, and the government had recommended the lowest end of the guidelines. The court explained, "15 to life is the statutory range. The guideline range is 180 to 210." He told Williams that "based on my findings, you have to get at least 15 years," but that if they proceed with the hearing, the government may reconsider its recommendation of 180 months. His counsel added that she had addressed "all of the issues."

The court then allowed the hearing to proceed, saying, "So there you go, Mr. Williams. We're going to play your game with you. They've just withdrawn their recommendation." After several questions to Williams about representing himself, he finally decided not to represent himself, recognizing his objections were preserved. Calling a "timeout" to reconsider, the government made "a new recommendation based on the defendant's comments regarding his appeal and his confidence in the success of that appeal." The government said that it "reflects on the genuineness of his acceptance of responsibility in this case." The government then recommended 16 years (192 months).

Williams's counsel asked for 180 months, arguing that "the 20 minutes it took him to come to the realization that his appeal would be preserved" should not cost him another year in prison. Williams himself said he "never intended to harm the Court in any type of way whatsoever, nor tried to manipulate it." The court, after considering the 18 U.S.C. § 3553(a) factors, sentenced Williams to 190 months.

On appeal, Williams argues that the government's increased sentencing recommendation and the district court's sentence were vindictive, denying him due process, and that his Sixth Amendment rights were violated when the district court, not a jury, determined that his prior drug offenses occurred on different occasions.

II.

In the district court, Williams did not claim that the government's sentencing recommendation and the district court's sentence were vindictive and denied him due process, so this court reviews for plain error. United States v. Washburn , 444 F.3d 1007, 1011 (8th Cir. 2006) (reviewing claim of prosecutorial vindictiveness for plain error where defendant did not object to an additional superseding indictment before retrial); United States v. Furnish , 141 F.3d 1171, 1171 (8th Cir. 1998) (per curiam) (table opinion, text at 1998 WL 184444 ), citing United States v. Vontsteen , 950 F.2d 1086, 1093 (5th Cir. 1992) (en banc) (holding that "contemporaneous objection was necessary to preserve" vindictiveness claim). Plain error review is governed by a four-part test.

[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

United States v. Pirani , 406 F.3d 543, 550 (8th Cir. 2005) (en banc).

Williams argues (1) the record shows actual vindictiveness by the government and (2) the district court's acts require a presumption that it vindictively sentenced him to 190 months, rather than the 180 months initially recommended by the government. He insists that the government's increased sentencing recommendation was in "retaliation" for Williams's request to proceed pro se and his insistence on repeating PSR objections on the record to preserve them for appeal, and that the district court "expressed annoyance with Williams," making comments showing a vindictive motive.

A.

"Although the government may take action to punish a defendant for committing a crime, punishing a defendant for exercising his valid legal rights is impermissible prosecutorial vindictiveness." United States v. Campbell , 410 F.3d 456, 461 (8th Cir. 2005). However, the defendant's evidentiary "burden is a heavy one, and we recognize the broad discretion given to prosecutors in enforcing criminal statutes." Id.

True, the government initially recommended 180 months in prison—the statutory minimum—and increased its recommendation after Williams repeatedly made his objections. However, the government also said his acts reflected on his acceptance of responsibility. Cf. U.S.S.G. § 3E1.1 , cmt. n.3. (evidence of acceptance of responsibility "may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility"). See generally Campbell , 410 F.3d at 462 ("A presumption does not arise just because action detrimental to the defendant was taken after the exercise of the defendant's legal rights; the context must also present a reasonable likelihood of vindictiveness.").

Revising a sentencing recommendation for a legitimate reason during a sentencing hearing is not prosecutorial vindictiveness. See id. , at 462 (finding no prosecutorial vindictiveness if the prosecutor's decision is based on some objective reason other than to punish the defendant for exercising his legal rights). See generally Koski v. Samaha , 648 F.2d 790, 797 (1st Cir. 1981) (in two tier system, defendant exercised right de novo trial, and the prosecutor recommended a higher sentence than previously given on the identical charge) ("To overturn a conviction or vacate a sentence on the theory that it was tainted by ‘vindictiveness’ in the prosecutor's actual or threatened recommendation is to suggest that it was the prosecutor not the judge who was running the court."), relying on Bordenkircher v. Hayes , 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (holding that a plea-bargaining prosecutor did not violate due process by threatening a more serious charge (under a recidivist statute) if defendant did not plead guilty); United States v. Goodwin , 457 U.S. 368, 380-81, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (finding no evidence of actual vindictiveness after a pretrial decision to modify charges against the defendant because the prosecutor "never suggested that the charge was brought to influence the respondent's conduct").

B.

Williams asserts that the district court's statements that Williams was "chasing rabbits" and (twice) "wants to play some games" demonstrates "actual vindictive motive, or, at minimum, a reasonable likelihood of a vindictive motive." After defense counsel referred to (paid) advice from another prisoner, the district court said, "I usually encourage people not to...