USA v. Kenneth F. Williams

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14086
Non-Argument Calendar
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D.C. Docket No. 5:13-cr-00033-RS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH F. WILLIAMS,
a.k.a. Mobile,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 26, 2016)
Before WILLIAM PRYOR, ROSENBAUM, and FAY, Circuit Judges.
PER CURIAM:
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After a jury trial, Kenneth Williams was convicted of two counts of
distributing crack cocaine and one count of possessing with intent to distribute
crack cocaine, all in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He appeals
his convictions and total sentence on various grounds. After careful review, we
affirm.
I.
Williams first argues that insufficient evidence supported his convictions.
He contends that the government’s case relied almost entirely on circumstantial
evidence from an unreliable witness whose testimony was unworthy of belief.
Generally, we review de novo whether sufficient evidence supports a jury’s
verdict in a criminal trial.1 United States v. Howard, 742 F.3d 1334, 1341 (11th
Cir. 2014). We view the evidence presented at trial, and draw all reasonable
inferences therefrom, in the light most favorable to the government. United States
v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001). We will not disturb a guilty
verdict unless no reasonable trier of fact could have found that the evidence
establishes the defendant’s guilt. Howard, 742 F.3d at 1341; United States v.
Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000).
1 Williams arguably did not preserve his sufficiency challenge by presenting the
argument he raises on appeal to the district court in support of his motion for judgment of
acquittal. In any case, Williams’s challenge fails even under the more rigorous de novo standard.
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“The jury gets to make any credibility choices, and we will assume that they
made them all in the way that supports the verdict.” United States v. Thompson,
473 F.3d 1137, 1142 (11th Cir. 2006). We will not revisit the question of witness
credibility unless the testimony is incredible as a matter of law. United States v.
Feliciano, 761 F.3d 1202, 1206 (11th Cir.) cert. denied, 135 S. Ct. 735 (2014). For
testimony to be considered incredible, it must be unbelievable on its face, such as
testimony as to facts that the witness physically could not have observed or events
contrary to the laws of nature. Id.
All of Williams’s convictions fall under 21 U.S.C. § 841(a)(1).2 To sustain
a conviction for distribution of crack cocaine, the government must show that the
defendant knowingly or intentionally distributed or dispensed cocaine base. 21
U.S.C. § 841(a)(1). To sustain a conviction for possession with intent to distribute
crack cocaine, the government must demonstrate that the defendant knowingly
possessed the controlled substance with the intent to distribute it. See United
States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005). Intent to distribute can
be inferred from the amount of cocaine base involved. See id.
2 In the section of his brief challenging the sufficiency of the evidence, Williams asserts
that the district court failed to instruct the jury on the term “willfully.” Even assuming that
Williams’s passing comment was sufficient to raise the issue for review, the district court did not
so err because “[t]he language of [§ 841(a)(1)] does not refer, in any way, to willfulness, and as a
consequence, we have said that the government only needs to prove that the defendant acted
knowingly.” United States v. Tobin, 676 F.3d 1264, 1281 (11th Cir. 2012).
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Here, viewing the trial evidence in the light most favorable to the
government, sufficient evidence supports Williams’s convictions for distributing
crack cocaine and possessing with intent to distribute crack cocaine. The jury
heard evidence that a confidential source, Kedrick Odom (occasionally “Odum” in
the record), purchased crack cocaine from Williams on two occasions, in October
2012 and January 2013, as part of controlled buys organized by the Drug
Enforcement Administration (“DEA”) and state and local law-enforcement
agencies. Odom testified that, on both occasions, he called Williams to set up the
purchases, met Williams at a designated location (Williams’s residence and a gas
station), and then purchased from Williams around $400 worth of crack cocaine,
which he then gave to the DEA. Odom was searched by agents before and after
the controlled buys, and the phone calls and transactions were monitored by DEA
agents. One of the DEA agents accompanied Odom to the controlled buys and
personally witnessed Odom meeting with Williams and, shortly thereafter,
returning with the crack cocaine. Odom also testified that he had purchased $100
to $400 worth of crack cocaine from Williams on approximately forty to fifty prior
occasions.
Nothing about Odom’s testimony—based on personal knowledge and
largely corroborated by DEA agents—was incredible as a matter of law.
Moreover, the jury heard the negative information about Odom that Williams cites
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on appeal, such as Odom’s personal drug dealing while working with another law-
enforcement agency and the fact that Odom’s help on Williams’s case benefitted
Odom both legally and financially. Despite these facts, the jury apparently found
his testimony to be credible. We defer to the jury’s credibility determination. See
Feliciano, 761 F.3d at 1206; Thompson, 473 F.3d at 1142.
The jury also heard testimony regarding the execution of a search warrant at
Williams’s residence in February 2013. While executing the search warrant on
Williams’s home, officers found 5.7 grams of crack cocaine in the house, as well
as $4,000 in a safe that, according to one of the DEA agents, smelled of cocaine.
Williams admitted to an agent that both the safe and the money were his. The jury
also heard from Brian Lammers, a DEA agent involved in the search of Williams’s
residence, who testified that Williams stated during the search that he had not been
employed since 2005. Lammers also testified that there were three vehicles at the
residence at the time of the search, two of which had been used by Williams during
the controlled buys.
In light of evidence regarding the two controlled buys, William’s prior
dealings with Odom, the $4,000 cash in the safe, the crack cocaine found at
Williams’s residence, and William’s lack of employment and unexplained wealth,
a reasonable jury could have concluded that Williams knowingly distributed crack
cocaine and knowingly possessed with the intent to distribute crack cocaine. See
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21 U.S.C. § 841(a)(1); Hernandez, 433 F.3d at 1333. Because sufficient evidence
supports his convictions, the district court did not err in denying Williams’s motion
for judgment of acquittal.
II.
Williams next argues that the district court abused its discretion in admitting
evidence of the following: (1) his lack of employment coupled with unexplained
wealth; and (2) a 2001 Florida judgment of conviction for possession of cocaine
and sale of cocaine.
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. House, 684 F.3d 1173, 1197 (11th Cir. 2012). Evidentiary errors
are subject to review for harmlessness. Id. A non-constitutional evidentiary error
does not warrant reversal unless there is a reasonable likelihood that the error
affected the defendant’s substantial rights. Id.; United States v. Hands, 184 F.3d
1322, 1329 (11th Cir. 1999). “That is, we will not reverse a defendant’s conviction
on the basis of an evidentiary error that does not implicate his constitutional rights
if the error had no substantial influence, and enough evidence supports the result
apart from the phase affected by error.” House, 684 F.3d at 1197.
A. Wealth Evidence
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Williams argues that evidence of his lack of employment history and wealth
should have been excluded as both unfairly prejudicial under Rule 403 and beyond
the scope of lay testimony from the agent.
District courts have broad discretion to admit wealth evidence so long as it
aids in proving or disproving a fact in issue. United States v. Bradley, 644 F.3d
1213, 1272 (11th Cir. 2011). Evidence of a defendant’s unexplained wealth can be
probative of a defendant’s involvement in drug trafficking, provided it is
accompanied by a showing that the defendant lacked legitimate sources of income.
United States v. Terzado-Madruga, 897 F.2d 1099, 1120 (11th Cir. 1990).
Under Federal Rule of Evidence 403, the trial court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of, among
other things, unfair prejudice, confusing the issues, or misleading the jury. Fed. R.
Evid. 403. Under Rule 602, “[a] witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may consist of the witness's
own testimony.” Fed. R. Evid. 602. A witness’s lay opinion is admissible if it is
“rationally based on the witness’s perception.” Fed. R. Evid. 701.
Here, the district court did not abuse its discretion in admitting evidence of
Williams’s lack of employment coupled with his unexplained wealth. The fact that
Williams had not been employed since 2005, in light of Williams’s distribution and
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possession of crack cocaine, tends to suggest that Williams’s wealth was derived
from dealing crack cocaine. See Terzado-Madruga, 897 F.2d at 1120. Williams
asserts that his lack of employment history “comes too close to revealing [his]
prior incarceration history,” because in order to rebut the testimony, he would have
had to reveal his criminal history. But revealing Williams’s incarceration history
would not rebut the government’s evidence, because it does not show that
Williams’s wealth was legitimately derived. Overall, Williams has not shown that
the danger of unfair prejudice substantially outweighed the probative value of this
evidence. See Fed. R. Evid. 403.
In addition, the district court did not err in allowing the agent to testify as to
observations made and information obtained during the search of Williams’s
residence. The agent did not testify as an expert or to matters beyond his personal
knowledge. Accordingly, the evidence of Williams’s unexplained wealth was
properly admitted. See Fed. R. Evid. 602, 701; see also Terzado-Madruga, 897
F.2d at 1120.
B. Rule 404(b) Evidence
Williams contends that his 2001 Florida conviction for possession and sale
should have been excluded for three reasons. First, he argues, it was based on a
plea of nolo contendere, and Rule 410, Fed. R. Evid., precludes its admission.
Second, he contends, it was too remote in time to be used at trial. And third, he
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argues, it should have been excluded under Rule 403, Fed. R. Evid., because its
probative value was substantially outweighed by unfair prejudice.
Federal Rule of Evidence 404(b) provides that evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity with that character, but such evidence may be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. United
States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). “Rule 404(b) is one of
inclusion which allows extrinsic evidence unless it tends to prove only criminal
propensity.” United States v. Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012)
(internal quotation marks omitted). Generally, evidence is admissible under Rule
404(b) if it meets three requirements: “(1) it is relevant to an issue other than the
defendant’s character; (2) the prior act is proved sufficiently to permit a jury
determination the defendant committed the act; and (3) the evidence’s probative
value cannot be substantially outweighed by its undue prejudice, and it must satisfy
Federal Rule of Evidence 403.” Eckhardt, 466 F.3d at 946.
Whether a conviction based on a nolo contendere plea can be introduced as
proof of a defendant’s knowledge or intent under Rule 404(b) does not appear to
have been directly resolved by this Court. Cf. United States v. Wyatt, 762 F.2d
908, 911 (11th Cir. 1985) (holding that facts underlying a defendant’s plea of nolo
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contendere may be admissible under Rule 404(b) even if the plea is not). But, in
this case, we need not decide whether, as a general matter, a conviction based upon
a plea of nolo contendere is admissible under Rule 404(b) as substantive proof of a
defendant’s intent.
Evidentiary errors are subject to review for harmlessness, and we conclude
that the error was harmless under the circumstances. See Hands, 184 F.3d at 1329.
We cannot say that the 2001 judgment of conviction for possession and sale of
cocaine had a “substantial influence” on the jury’s verdict. See id. As recounted
above, the government presented ample evidence, untainted by error, showing that
Williams knowingly sold crack cocaine to Odom on two occasions, possessed
crack cocaine at his home along with $4,000 in a safe that smelled of cocaine, and
had not been employed since 2005. The 2001 conviction showed that Williams
had sold and possessed cocaine in the past, two actions demonstrated far more
persuasively by the evidence presented at trial. Viewed in its totality, the evidence
of Williams’s guilt was overwhelming, and there is no reason to think that the 2001
conviction had anything other than, at most, a marginal influence on the jury.
IV.
Williams also challenges the procedural and substantive reasonableness of
his sentence. He argues that the district court committed procedural error at
sentencing when determining the drug quantity for which he was responsible.
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Further, Williams contends that the sentence imposed by the district court was not
substantively reasonable.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591, 169 L. Ed. 2d 445 (2007). We employ a two-step process in reviewing
the reasonableness of a sentence. United States v. Pugh, 515 F.3d 1179, 1190
(11th Cir. 2008). We look “first at whether the district court committed any
significant procedural error and then at whether the sentence is substantively
reasonable under the totality of the circumstances.” United States v. Tome, 611
F.3d 1371, 1378 (11th Cir. 2010).
A.
A district court procedurally errs by improperly calculating the guideline
range, among other things. United States v. Almedina, 686 F.3d 1312, 1315 (11th
Cir. 2012). We review a district court’s underlying determination of the drug
quantity attributable to a defendant for clear error. Id.
To calculate a base offense level for drug distribution, the district court must
determine the quantity of drugs properly attributable to the defendant. United
States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996). “When the drug amount
that is seized does not reflect the scale of the offense, the district court must
approximate the drug quantity.” Almedina, 686 F.3d at 1315-16. In estimating the
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quantity, the sentencing court may rely on evidence demonstrating the average
frequency and amount of a defendant’s drug sales over a given period. Id. at 1316.
“This determination may be based on fair, accurate, and conservative estimates of
the drug quantity attributable to a defendant, [but it] cannot be based on
calculations of drug quantities that are merely speculative.” Id. (internal quotation
marks omitted). The government must establish drug quantity by a preponderance
of the evidence. Id. at 1315.
The district court’s drug-quantity finding was not clearly erroneous. The
court heard testimony at sentencing regarding the amounts of crack cocaine Odom
previously purchased from Williams, as well as the crack cocaine seized from
Williams’s residence. The court applied a conservative estimate of drug quantity
based on this testimony, using the low end of the ranges in Odom’s testimony,
yielding a total of 92.2 grams of cocaine base. The court was entitled to find,
based on that testimony, that the drug amount was proven by a preponderance of
the evidence. See id. at 1315-16; Frazier, 89 F.3d at 1506. Williams is correct to
the extent that, when a defendant is being held accountable for the acts of others as
part of his relevant conduct (as in a conspiracy case), the district court must make
an individualized finding of the drug quantity attributable to each individual
defendant. See United States v. Reeves, 742 F.3d 487, 506-07 (11th Cir. 2014).
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Here, however, Williams was held accountable for only his own conduct, so the
drug-quantity finding is an individualized finding.
In any case, even if the district court erred in calculating drug quantity, the
error had no effect on Williams’s guideline range because the district court found
that he qualified as a career offender for guidelines purpose. See United States v.
Foley, 508 F.3d 627, 634 (11th Cir. 2007) (holding that errors are harmless if they
do not substantially affect the sentence imposed). As a result, the career-offender
guideline, § 4B1.1, rather than drug quantity, § 2D1.1, determined his offense level
and guideline sentencing range. U.S.S.G. § 4B1.1(b); see United States v. Lawson,
686 F.3d 1317, 1319 (11th Cir. 2012).
Williams does not argue that he was improperly sentenced as a career
offender. Rather, he contends that the career-offender guideline is overly harsh,
fails to distinguish between the severity of predicate offenses, and has a disparate
impact on African-Americans. Because Williams does not contend that the career-
offender guideline was erroneously applied, and because the court is required to
apply the guidelines in effect at the time of his sentencing, U.S.S.G. § 1B1.11, we
will consider these policy arguments in addressing the substantive reasonableness
of his sentence.
B.
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Williams contends that his total sentence of 294 months in prison is overly
harsh. He asserts that a sentence of 120 months would have been sufficient but not
greater than necessary to comply with the sentencing factors in 18 U.S.C.
§ 3553(a).
We examine “whether the sentence is substantively reasonable under the
totality of the circumstances.” Tome, 611 F.3d at 1378. The party challenging the
sentence bears the burden of showing it is unreasonable in light of the record and
the § 3553(a) factors. Id.
The district court must impose a sentence that is “sufficient, but not greater
than necessary, to comply with the purposes” set forth in 18 U.S.C. § 3553(a)(2).
18 U.S.C. § 3553(a). These purposes include the need to reflect the seriousness of
the offense, promote respect for the law, provide just punishment for the offense,
afford adequate deterrence to criminal conduct, and protect the public from further
crimes. Id. The sentencing court must also consider the nature and circumstances
of the offense, the history and characteristics of the defendant, the kinds of
sentences available, the applicable guideline range, the pertinent policy statements
of the Sentencing Commission, the need to avoid unwarranted sentencing
disparities, and the need to provide restitution to any victims of the offense. Id. §
3553(a)(1), (3)-(7). The weight given to any of these factors is in the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
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2007). “[B]ut we will remand for resentencing if we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” Id. (internal quotation
marks omitted).
With the career-offender enhancement, Williams’s guideline range was 262
to 327 months of imprisonment. Without it, Williams’s guideline range would
have been 120 to 150 months based on the court’s determination of drug quantity.
The maximum term of imprisonment he faced as to each count was 360 months.
The district court imposed a total sentence of 294 months, stating that Williams
was a career offender with no aggravating or mitigating factors.
Williams has not shown that his sentence is substantively unreasonable in
light of the facts and the § 3553(a) factors. We ordinarily expect a sentence within
the guideline range to be reasonable. United States v. Asante, 782 F.3d 639, 648
(11th Cir. 2015). While the district court may have been permitted to vary
downward from the career-offender enhanced guideline range based on a policy
disagreement with the career-offender guideline, or based on the specific facts of
Williams’s case and the § 3553(a) factors, Williams has not shown that the district
court abused its discretion in not varying downward. Williams’s presentence
investigation report reflects an extensive and repetitive criminal history, even if the
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offenses were relatively minor. Numerous terms of incarceration and other legal
sanctions failed to deter him from drug dealing and committing other violations of
the law. In light of Williams’s history and characteristics, his career-offender
designation, and the facts of the instant offense, we cannot conclude that the
district court made a clear error of judgment in weighing the § 3553(a) factors and
sentencing Williams near the mid-point of his guideline range. See Clay, 483 F.3d
at 743.
Accordingly, we affirm.
AFFIRMED.
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