United States of America v. BARRY D. WILLIAMSON a/k/a Dockey a/k/a Poppa a/k/a Black Poppa a/k/a Thomas Thompson…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-1373
_____________
UNITED STATES OF AMERICA
v.
BARRY D. WILLIAMSON
a/k/a Dockey
a/k/a Poppa
a/k/a Black Poppa
a/k/a Thomas Thompson
Barry D. Williamson,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 02-cr-00187-3)
District Judge: Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34,1(a)
March 28, 2008
Before: McKEE, RENDELL and TASHIMA*, Circuit Judges
Filed: April 9, 2008
__________________
* Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.

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OPINION OF THE COURT
RENDELL, Circuit Judge.
Barry D. Williamson appeals his sentence of 182 months’ imprisonment imposed
following his plea of guilty to criminal conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(h). For the reasons that follow, we will affirm the sentence
imposed by the District Court.
Because we write for the parties, we set out only those portions of the facts and
procedural history which are pertinent to our analysis. On January 23, 2003, Williamson
pled guilty pursuant to a written plea agreement to conspiracy to commit money
laundering. A Presentence Investigation Report (“PSR”) was drawn up in preparation
for sentencing, and Williamson filed several objections to the PSR, including an
objection to the use of the 2002 version of the Sentencing Commission Guidelines
Manual, instead of the 2000 version.
At the first sentencing hearing on January 29, 2004, the District Court began by
raising the issue of objections to the PSR. Defendant’s counsel replied, “for the record
the defendant respectfully would like to withdraw the former objections that were made.”
(App. 37A). After confirming that the principal objection being withdrawn was to the
version of the Guidelines applied, the Court asked Williamson whether he and his
counsel had discussed withdrawing the objections and whether he agreed to withdraw the

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objection to the version of the Guidelines used. (App. 38A). Williamson responded
affirmatively to both questions. (App. 38A).
Using the 2002 Guidelines Manual, the District Court sentenced Williamson to a
240-month term of imprisonment, but subsequently amended its judgment to reduce the
term of imprisonment to 192 months. Williamson appealed. On April 6, 2005, our Court
removed Williamson’s counsel for failing to timely process his appeal and, on November
15, 2006, summarily remanded to the District Court for resentencing in light of United
States v. Booker, 543 U.S. 220 (2005).
Williamson then filed a motion with the District Court, requesting that it consider
and decide his objection to the use of the 2002 Guidelines Manual. On January 25,
2007, the District Court resentenced Williamson to a 180-month term of imprisonment.
Williamson timely appealed the sentence.
Williamson challenges his sentence on two grounds. First, he argues that the
District Court violated his Sixth Amendment right to a jury trial because, in order to
calculate his Guideline range, it determined the nature and quantity of drug amounts and
the use of a firearm itself, instead of submitting those issues to a jury. Because
Williamson failed to preserve this objection at sentencing, we review it for plain error.
United States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002).
Williamson relies on Cunningham v. California, 127 S. Ct. 856 (2007), which, he
argues, precludes a sentencing court from making findings necessary for a firearm

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enhancement and determinations of drug quantity. Cunningham, however, stands for the
proposition that judicial determinations of aggravating sentencing factors violates the
Sixth Amendment when performed under a mandatory sentencing scheme. Here, the
District Court did not consider the Guidelines to be mandatory. Contrary to Williamson’s
arguments, the Court found facts that increased the applicable Guideline range, not facts
that raised the sentence above the statutory maximum for the crime to which he pled.
Accordingly, Williamson’s argument lacks merit. See United States v. Grier, 475 F.3d
556, 565-566 (3d Cir. 2007).
Second, Williamson contends that, on remand from this Court, the District Court
should have permitted him to challenge the version of the Guidelines Manual used.
Williamson clearly and affirmatively waived this objection at his first sentencing hearing.
He had knowledge of his right to object to the use of the 2002 Guidelines Manual and
intentionally chose to abandon it. Under such circumstances “his failure to object will be
deemed a ‘waiver’ depriving him of the opportunity to obtain relief on appeal.” Virgin
Islands v. Rosa, 399 F.3d 283, 291 (3d Cir. 2005). The prior remand and resentencing
under Booker does not change the analysis. This argument accordingly fails.
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.

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