United States of America v. Damon D. Williams, also known as Damo

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3766
___________________________
United States of America
Plaintiff - Appellee
v.
Damon D. Williams, also known as Damo
Defendant - Appellant
___________________________
No. 23-3777
___________________________
United States of America
Plaintiff - Appellee
v.
Tawhyne M. Patterson, Sr.
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: January 13, 2025
Filed: April 1, 2025
[Unpublished]
____________

-- 1 of 3 --

-2-
Before SMITH, BENTON, and ERICKSON, Circuit Judges.
____________
PER CURIAM.
Following remand for resentencing after we vacated their convictions for
murder with a firearm during a crime of violence (“Count I”) in United States v.
Patterson, 68 F.4th 402 (8th Cir. 2023), the district court1 sentenced Damon
Williams and Tawhyne Patterson to terms of imprisonment of 660 months. They
challenge several decisions affecting their sentences.
Williams and Patterson assert the district court erred in grouping their two
convictions for attempted Hobbs Act robbery under USSG § 3D1.2. We need not
reach the merits of an argument regarding the incorrect calculation of the Guidelines
range if the alleged error is harmless. United States v. Holmes, 87 F.4th 910, 915
(8th Cir. 2023). A calculation error is harmless if the district court indicated it would
have imposed the same sentence under the lower guideline range. Id. at 914 (quoting
United States v. Hamilton, 929 F.3d 943, 948 (8th Cir. 2019)). The district court
must identify the contested issue and potentially erroneous ruling and then provide
an adequate alternative legal and factual explanation for its sentence. Id. (quoting
United States v. Sayles, 674 F.3d 1069, 1072 (8th Cir. 2012)).
After a thorough review of the record, we find that the district court identified
the disagreement regarding the application of § 3D1.2, stated that it would have
given the same sentence without applying § 3D1.2, and provided an alternative
explanation under the 18 U.S.C. § 3553(a) factors for the sentence. Any alleged
procedural error is harmless. Id. at 915.
Next, Williams asserts the district court’s application of the murder cross
reference under USSG § 2A1.1 violates his Fifth and Sixth Amendment rights
1 The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

-- 2 of 3 --

-3-
because we vacated his conviction on Count I. We review de novo a constitutional
challenge to the application of the Guidelines. United States v. Howell, 606 F.3d
960, 963 (8th Cir. 2010).
It is well established that a defendant’s constitutional rights are not violated
when the district court applies the § 2A1.1 cross reference. United States v. Jackson,
782 F.3d 1006, 1013 (8th Cir. 2015). The district court must find facts proven by a
preponderance of the evidence to support the cross reference. Howell, 606 F.3d at
963. We review its factual findings for clear error. Jackson, 782 F.3d at 1013.
In this case, we did not vacate the conviction on Count I because the murder
did not occur. Instead, we vacated because an essential element of the offense –
“during a crime of violence” – could not be established by an attempted Hobbs Act
robbery. Patterson, 68 F.4th at 420.
The jury found Williams guilty beyond a reasonable doubt of murder. More
than a preponderance of the evidence supported the finding of murder. The district
court did not clearly err in applying § 2A1.1.
Finally, Patterson asserts his sentence is substantively unreasonable because
the district court applied the § 2A1.1 murder cross reference to the first attempted
Hobbs Act robbery conviction (“Count II”). We review the substantive
reasonableness of a sentence under the highly deferential abuse of discretion
standard. United States v. Neri, 73 F.4th 984, 988 (8th Cir. 2023).
The record reflects that the district court properly considered and weighed the
§ 3553(a) factors before imposing the statutory maximum sentence for Count II. We
find no abuse of discretion in the sentence.
The judgments of the district court are affirmed.
______________________________

-- 3 of 3 --