United States of America v. William E. Toombs, Jr., also known as Zorro, also known as Big Z

United States Court of Appeals
For the Eighth Circuit
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No. 23-1211
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
William E. Toombs, Jr., also known as Zorro, also known as Big Z
lllllllllllllllllllllDefendant - 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 18, 2023
Filed: October 6, 2023
[Unpublished]
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Before SMITH, Chief Judge, ARNOLD and ERICKSON, Circuit Judges.
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PER CURIAM.
William Toombs, Jr., pleaded guilty to being a felon in possession of a firearm,
see 18 U.S.C. §§ 922(g)(1), 924(a)(2), and to obtaining oxycodone by fraud, see 21

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U.S.C. § 843(a)(3), (d)(1), and the district court1 sentenced him to 37 months'
imprisonment and three years' supervised release. He struggled to comply with the
conditions of his supervised release, in particular the condition that he refrain from
unlawfully using controlled substances. Over the first two years of supervision, the
district court modified his release conditions four separate times because he tested
positive for cocaine. The modifications required Toombs to participate in cognitive
behavioral treatment, to perform community service, and to abide by a curfew and
location monitoring for thirty days.
Toombs's probation officer then advised the court that Toombs had tested
positive for "heroin/morphine," marking the fifth time she had informed the court that
Toombs had violated the conditions of his supervised release. She recommended that
the court require Toombs to abide by a curfew and location monitoring for ninety
days. She wrote that she had told Toombs that she had "exhausted all the intermediate
sanctions to keep him in the community and is hopeful his sporadic drug use will
cease" and that "Toombs is aware of the seriousness of continued substance abuse
and was advised continued noncompliance will be reported to the Court." The court
adopted her recommendation.
A few months later Toombs's probation officer advised the court of additional
violations. She reported that, during a search of Toombs's bedroom, officers found
baggies of cocaine base, pills believed to contain fentanyl, a green leafy substance,
other unidentified pills, and a digital scale. Officers also reportedly found a gun and
ammunition in the bedroom of Toombs's son and another gun and more ammunition
in a car outside the home. She alleged that Toombs had violated conditions
prohibiting him from committing another crime, from unlawfully possessing a
1The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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controlled substance, from failing to report contact with police officers, and from
possessing a firearm and ammunition.
At a hearing on the allegations, Toombs admitted the violations except the one
prohibiting him from possessing a firearm and ammunition. The government did not
put on evidence to prove that allegation. The Sentencing Guidelines recommended
that the district court sentence Toombs to 6–12 months in prison, and the parties
jointly recommended a sentence of a year and a day. The court replied that "this
seems more serious." Defense counsel pointed out that the previous violations
Toombs committed were related to substance-abuse issues and that Toombs was
actively "participating" and "engaged" in supervision. He also noted that the evidence
did not show that Toombs possessed a weapon or ammunition. Defense counsel's
discussion did not sway the court, as it stated it still believed the recommended
sentence was insufficient in light of Toombs's history and characteristics, the nature
of his release violations, and his record on supervision. So the court sentenced
Toombs to 24-months' imprisonment—the statutory maximum. See 18 U.S.C.
§ 3583(e)(3).
Toombs maintains that the court abused its discretion by imposing a
substantively unreasonable sentence. A court abuses its discretion when it commits
a clear error of judgment in weighing relevant sentencing considerations. See United
States v. Clark, 998 F.3d 363, 369 (8th Cir. 2021). Toombs emphasizes certain
mitigating circumstances that he believes the court should have given greater weight.
For example, he contends that his multiple violations stem from his struggle with
drug addiction. He also notes that the probation officer informed the court in several
violation reports that "Toombs has been easy to contact and maintains a positive
attitude towards supervision." He therefore contends that a sentence within the
Guidelines range would have been appropriate.
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We do not believe the court committed a clear error of judgment here. Toombs
violated the conditions of his release several times, and the court gave him several
opportunities to kick his drug addiction before revoking his release and sentencing
him to prison. Not until the sixth report of violations did the court conclude that
leniency hadn't worked. And that sixth report reflected that Toombs had possessed
a slew of illegal substances, including the particularly dangerous fentanyl. "[W]e have
upheld similar upward variances based in part on a defendant's repeated violation of
the terms of his or her supervised release." Id. And though the court's sentence
exceeded the one that the parties jointly recommended, that doesn't mean that the
court was unreasonable in thinking the parties' recommendation was insufficient. See
United States v. Steele, 899 F.3d 635, 639 (8th Cir. 2018).
Toombs also faults the court for imposing an upward variance at least in part
because it believed he had possessed a gun and ammunition or perhaps even
participated in one or more shootings at his residence. But we do not read the court's
explanation of sentence as being based on a finding that Toombs had possessed a gun
or ammunition or participated in shootings. The court said that it was considering "the
violations acknowledged," suggesting that it wasn't considering the allegations
surrounding the guns and ammunition found at Toombs's home or the alleged
shootings. We detect no reversible error here.
Affirmed.
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