United States of America v. Christopher Williams

United States Court of Appeals
For the Eighth Circuit
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No. 19-2235
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United States of America
Plaintiff - Appellee
v.
Christopher Williams
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 25, 2020
Filed: September 30, 2020
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Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.
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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
1The Honorable David G. Kays, United States District Judge for the Western
District of Missouri.

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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

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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

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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

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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

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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 (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
(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 listen to the jailbirds, to listen to the
lawyers.” The court explained to Williams that the government had implied that it
could be to his disadvantage to insist that he repeat the objections his lawyer had
already made, noting:
He’s recommended the lowest end of the guidelines for
you, which is 180 months, which I thought was very
generous of the Government.
The Government’s saying, listen, if Mr. Williams wants to
play some games here, maybe we should go ahead and
exhaust this and chase these rabbits, and their
recommendation might be different.
Williams seeks a presumption of judicial vindictiveness, but it does not apply
if the judge has no personal stake in prior proceedings. See United States v. Fry,
792 F.3d 884, 890 (8th Cir. 2015) (no presumption where defendant complained

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about “a disparity of sentences imposed on two different people”); Texas v.
McCullough, 475 U.S 134, 139 (1986) (judge who grants motion for new trial has
no personal stake and may resentence after new trial); Colten v. Kentucky, 407 U.S.
104, 117 (1972) (no presumption after defendant receives a higher sentence, in a
two-tiered system (trial de novo in a superior court) due to the “completely fresh
determination of guilt and innocence”). The cases Williams cites about the
presumption all involve an unexplained higher sentence after retrial. See North
Carolina v. Pearce, 395 U.S. 711, 723-25 (1969) (retrial after reversal on appeal);
Alabama v. Smith, 490 U.S. 794, 798-99 (1989) (explaining “whenever a judge
imposes a more severe sentence upon a defendant after a new trial, the reasons for
him doing so must affirmatively appear. . . . Otherwise, a presumption arises that . .
. must be rebutted by objective information . . . justifying the increased sentence”)
(internal quotation marks omitted). The Supreme Court makes clear that the
presumption was not designed to prevent a higher sentence “for some valid reason
associated with the need for flexibility and discretion in the sentencing process,” but
was “premised on the apparent need to guard against vindictiveness in the
resentencing process.” Chaffin v. Stynchcombe, 412 U.S. 17, 25 (1973).
As for actual vindictiveness, this court has never held an initial sentence to be
“vindictive.” See Waring v. Delo, 7 F.3d 753, 758 (8th Cir. 1993) (use of an
insulting vernacular while sentencing did not support the conclusion that district
court became angry at defendant for moving to withdraw his guilty plea). Williams
cites no case holding an initial sentence vindictive in a way that denies due process.
See United States v. Anderson, 440 F.3d 1013, 1016 (8th Cir. 2006) (“The rule
suggested by these cases makes sense because the motivation to be vindictive arises
when a judge with a personal stake in the prior proceedings is asked to do over what
[he or she] thought [he or she] had already done correctly.”) (internal quotation
marks omitted).
Regardless, Williams cannot show that his substantial rights were affected.
The district court considered the sentencing factors at length, stressing those
important to the sentence.

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“So I’ve considered all the factors under 18 U.S.C.
3553(a). You’ve got eight prior felonies, right, before this
one? This is your ninth felony. It’s all involving dope.
This goes to your history and your characteristics.
. . . .
The factors that are important here are the nature and
circumstances of this offense, the different types of drugs
you had, the fact that you had the gun for three years,
according to your admission. Understandable being in the
drug business as long as you have been, it’s
understandable that you want a gun to help you with the
drug business. The need for the sentence imposed reflects
the seriousness of the offense, promotes respect for the law
and provides just punishment, the need for adequate
deterrence is important in this case. The need to protect
the public from further crimes is of paramount importance
in this case.
The district court then imposed a within-guidelines sentence two months below the
government’s recommendation, and ten months more than the statutory minimum.
Under these facts, on plain error review, Williams does not meet the “heavy”
burden of demonstrating his sentence was vindictive. See Campbell, 410 F.3d at
461. See generally Litecky v. United States, 510 U.S. 540, 555 (1994) (“judicial
remarks during the course of a trial that are critical or disapproving of, or even hostile
to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge”); Waring, 7 F.3d at 759-60 (“Given the presumption of judicial
impartiality we will not assume that a judicial officer’s action was based on an
unconstitutional grudge, rather than the proper legal basis that he stated on the record
at the time the action was taken.”).

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III.
Williams argues that the district court violated his constitutional rights to due
process and a jury trial by finding that his prior convictions occurred on different
occasions, precipitating an ACCA sentence. This court reviews de novo the district
court’s application of the ACCA enhancement. United States v. Wyatt, 853 F.3d
454, 458 (8th Cir. 2017).
“The ACCA establishes a fifteen-year minimum prison sentence for any
person who violates § 922(g) and ‘has three previous convictions by any court . . .
for a violent felony or a serious drug offense, or both, committed on occasions
different from one another.” Id., citing 18 U.S.C. § 924(e)(1). Here, the PSR
reported that Williams was convicted four times of violating Missouri Revised
Statute § 195.211, a serious drug offense under the ACCA. See United States v.
Brown, 408 F.3d 1016, 1018 (8th Cir. 2005). The PSR separately details sales of a
controlled substance on or about September 13, 1995; July 25, 2000; July 27, 2000;
and August 1, 2000. Williams acknowledges he “did not challenge any factual
allegations set forth in the PSR” and “did not contest any factual allegation . . .
contained in the PSR.” See Fed. R. Crim. P. 32(i)(3)(A) (at sentencing, the court
“may accept any undisputed portion of the presentence report as a finding of fact”).
The district court determined that Williams’s prior convictions occurred on four
different occasions and applied the ACCA enhancement.
Williams argues that this determination is a fact to be decided by a jury, not
the judge. This argument is foreclosed by precedent. The Supreme Court rejected
the constitutional claim that “recidivism must be treated as an element of
[petitioner’s] offense,” and therefore presented to a jury for proof beyond a
reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 248 (1998).
Almendarez-Torres “stands for the proposition that not every fact expanding a
penalty range must be stated in a felony indictment, the precise holding being that
recidivism increasing the maximum penalty need not be so charged.” Jones v.
United States, 526 U.S. 227, 248 (1999). Interpreting Almendarez-Torres, this court

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holds that a sentencing court may determine whether potential ACCA-predicate
offenses occurred on “different occasions.” See United States v. Harris, 794 F.3d
885, 887 (8th Cir. 2015) (holding no violation of the Sixth Amendment when the
district court found prior offenses were committed on different occasions without
requiring proof beyond a reasonable doubt to a jury); United States v. Evans, 738
F.3d 935, 936-37 (8th Cir. 2014) (same) (collecting cases).
Williams also argues that to determine the dates, the district court erred in
relying on the PSR, which summarizes the state “Information” (substitute for
indictment) and the judgment. This court rejected this argument in United States v.
Richardson, 483 Fed. Appx. 302, 305 (8th Cir. 2012) (per curiam) (rejecting an
argument that the sentencing court’s use of the dates in the PSR to determine the
dates of the predicate offenses violated the defendant’s Sixth Amendment rights),
approved in Evans, 738 F.3d at 936. See United States v. Boyd, 956 F.3d 988, 991-
92 (8th Cir. 2020) (district court did not err in relying on police reports for sentencing
when the reports were described in the PSR and defendant did not object to them
before the district court).
The district court did not err by deciding, without a jury, that Williams’s four
prior serious drug offenses were “committed on occasions different from one
another.”
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The judgment is affirmed.
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