United States of America v. Wayne Stephen Williams

The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth*
Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-4649
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UNITED STATES OF AMERICA
v.
WAYNE STEPHEN WILLIAMS,
Appellant
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On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 05-cr-00017)
District Judge: Honorable Kent Jordan
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Submitted Under Third Circuit LAR 34.1(a)
September 13, 2006
Before: FUENTES, FISHER and McKAY, Circuit Judges.*
(Filed October 13, 2006)
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OPINION OF THE COURT
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“[O]ur post-Booker precedent instructs district courts to follow a1
three-step sentencing process.
(1) Courts must continue to calculate a defendant’s Guidelines sentence
precisely as they would have before Booker.
(2) In doing so, they must formally rul[e] on the motions of both parties and
stat[e] on the record whether they are granting a departure and how that
departure affects the Guidelines calculation, and tak[e] into account [our]
Circuit’s pre-Booker case law, which continues to have advisory force.
(3) Finally, they are required to exercise [ ] [their] discretion by considering
the relevant [§ 3553(a)] factors in setting the sentence they impose . . . .”
United States v. Gunter, No. 05-2952, 2006 WL 2589149, *9 (3d Cir. Sept. 11, 2006)
(internal citations and quotation marks omitted).
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FISHER, Circuit Judge.
Wayne Stephen Williams appeals his sentence for possession with intent to
distribute crack in violation of 21 U.S.C. § 841. Williams argues that the District Court
did not adequately consider the sentencing factors set forth in 18 U.S.C. § 3553(a), and
that it was unreasonable for the District Court to sentence him to the range prescribed by
the Sentencing Guidelines using the Guidelines’ formula for crack cocaine. We will
vacate the sentence and remand for re-sentencing in light of our decision in United States
v. Gunter, No. 05-2952, 2006 WL 2589149 (3d Cir. Sept. 11, 2006).
I.
Under United States v. Booker, 543 U.S. 220 (2005), as the third step in
determining criminal sentences, district courts must consider the factors set forth in 18
U.S.C. § 3553(a). “The record must demonstrate the trial court gave meaningful1
consideration to the § 3553(a) factors.” United States v. Cooper, 437 F.3d 324, 329 (3d

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See U.S. Sentencing Comm’n, Report to Congress: Cocaine and Federal2
Sentencing Policy ch. 8 (2002), available at http://www.ussc.gov/r_congress/02crack/
2002crackrpt.pdf (exhaustively cataloging empirical evidence gathered since 1986 and
concluding that the factual assumptions underlying the heightened crack punishments are
uniformly erroneous); id. at 91 (“After carefully considering all of the information
currently available . . . the Commission firmly and unanimously believes that the current
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Cir. 2006). We do not require any specific form of invocation or recitation; we ask only
whether the record reflects the district court’s awareness of the statutory factors and its
obligation to take them into account. In Cooper, we explained the standard as follows:
The court need not discuss every argument made by a litigant if an
argument is clearly without merit. Nor must a court discuss and make
findings as to each of the § 3553(a) factors if the record makes clear the
court took the factors into account in sentencing. Nor will we require
district judges to routinely state by rote that they have read the Booker
decision or that they know the sentencing guidelines are now advisory. On
the other hand, a rote statement of the § 3553(a) factors should not suffice if
at sentencing either the defendant or the prosecution properly raises a
ground of recognized legal merit (provided it has a factual basis) and the
court fails to address it.
Cooper, 437 F.3d at 329 (internal citations omitted).
In order to consider the factors, a district court must first correctly apprehend the
breadth of allowable arguments under each factor. In Gunter, we held that it is reversible
error for a district court to rule that it lacks discretion under § 3553(a) to consider
arguments concerning the inequity of the 100:1 crack-to-powder cocaine sentencing
differential. In that case, the defendant appealed to the criticisms and recommendations
of change made by the Sentencing Commission in its 2002 report to Congress regarding
the guidelines provisions governing crack cocaine. The district court stated that it was2

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federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives
set forth by Congress . . . .”).
In Gunter, as here, 21 U.S.C. § 841(b) defines the substantive criminal offense.3
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aware of the controversy surrounding the crack guidelines, and of the evidence amassed
and arguments made by the Sentencing Commission, but that consideration of such
evidence and arguments was not a proper judicial function – in short, that the court lacked
authority to consider, in its evaluation of the § 3553(a) factors, the possible disparity of
the guidelines for crack cocaine sentences.
We reversed, holding that district courts do have the authority to consider such
arguments, and that sentences imposed absent recognition of that authority are invalid
under Booker: “Post-Booker a sentencing court errs when it believes that it has no
discretion to consider the crack-to-powder disparity incorporated in the Guidelines – but
not demanded by 21 U.S.C. § 841(b) – as simply advisory at step three of the post-Booker
sentencing process (imposing the actual sentence after considering the relevant § 3553(a)
factors).” Gunter, 2006 WL 2589149, *11. While reiterating that a District Court may3
not “categorically reject the 100:1 ratio and substitute its own,” id., Gunter holds that
once a district court has properly calculated a defendant’s sentence under the guidelines
(using the 100:1 ratio adopted by Congress), it may consider the possible inequity of that
100:1 ratio in the third step of sentencing.
In Gunter, the district court rejected the defendant’s challenge to the 100:1 ratio as
follows:

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Doesn't a sentencing court have to respect the congressional intent with
respect to sentencing for crack versus powder cocaine, and to take a
position that does not recognize what Congress clearly intended, wouldn't
that be a legislative act by a Court as opposed to a judicial act? I don't think
the provisions that Congress has put up there for a Court to decide to
consider suggest that the court can second guess Congress' well-spelled out
intent with respect to sentencing. I don't think I can call it sentencing -- I
don't think I can say that there should not be a sentencing disparity.
Gunter, 2006 WL 2589149, *2.
In this case, the District Court rejected the defendant’s challenge to the 100:1 ratio
as follows:
[A]s you know, this is not the first time we've talked in this courtroom
about the difference in treatment under the guidelines of powder cocaine
and crack cocaine. So since you made the argument again, I'll just briefly
restate that as important as this issue is, it's an issue to be addressed by the
Sentencing Commission which is specifically set up to look at these kinds
of things and the Congress of the United States. And they're aware of it and
I don't think it's the province of the Court to say, well, I'm going to depart
from the guidelines because as a matter of public policy, I disagree with
those folks.
In this case, just as in Gunter, the District Court asserted that considering the
merits of the 100:1 guidelines ratio was a policy consideration that lay outside the
province of the judiciary. Under Gunter that assertion is reversible error. The District
Court did not give proper consideration to the full range of evidence and arguments
within its sentencing authority when considering the § 3553(a) factors at step three.
Gunter therefore requires that we vacate Williams’ sentence and remand this case so that
the District Court can re-sentence Williams with a correct and complete understanding of
the scope of its discretion under Booker.

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Accordingly, the judgment of sentence will be vacated and the case remanded for
re-sentencing.

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