David Williams v. Scott Horner

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3795
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Josiah Williams, *
*
Appellant. *
___________
Submitted: September 23, 2010
Filed: November 16, 2010
___________
Before LOKEN, HANSEN, and BENTON, Circuit Judges.
___________
BENTON, Circuit Judge.
A jury convicted Josiah Malachi Israel Williams of one count of distributing,
and aiding and abetting the distribution of, crack cocaine within 1,000 feet of a school.
See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 860; 18 U.S.C. § 2. On appeal, this court
affirmed. United States v. Williams, 486 F.3d 377 (8th Cir. 2007). The Supreme
Court, 552 U.S. 1091 (2008), vacated the judgment and remanded for reconsideration
in light of Kimbrough v. United States, 552 U.S. 85 (2007). On remand, this court
affirmed the conviction, but remanded for resentencing. United States v. Williams,
557 F.3d 556 (8th Cir. 2009). After initially sentencing Williams to 168 months of

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1The Honorable Linda R. Reade, Chief United States District Judge for the
Northern District of Iowa.
2For the underlying facts of Williams’s offense conduct, see United States v.
Williams, 557 F.3d 556 (8th Cir. 2009).
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imprisonment, the district court 1 resentenced him to 140 months. Williams now
appeals the new sentence. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
I.
Williams was convicted of distribution of crack cocaine and aiding and abetting
the distribution of crack cocaine within 1,000 feet of a school.2 He was originally
sentenced to a within-range sentence of 168 months in September 2006. His final
adjusted offense level was 30 and criminal history category was VI, resulting in an
advisory guidelines range of 168-210 months of imprisonment. The district court
stated that it had considered all the factors in 18 U.S.C. § 3553(a), and declined to
vary from the guidelines based on the crack/powder cocaine sentencing ratio and an
alleged sentencing disparity with Williams’s accomplice Lamarr Parks. The court also
stated that it reviewed the Presentence Investigation Reports of Parks and Maurice
Malone, who were both convicted for their roles in the same drug transaction. The
court found that Williams and the related defendants were not similarly situated
because of differing criminal records and differing amounts of crack at issue in the
three cases.
After this court affirmed, the Supreme Court vacated judgment and remanded
for reconsideration in light of Kimbrough. On remand, this court affirmed the
conviction, but remanded to the district court for resentencing. United States v.
Williams, 557 F.3d 556 (8th Cir. 2009).

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3 The lower offense level on resentencing was due to intervening Guideline
Amendment 706, which reduced the base offense levels for crack cocaine.
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Before sentencing, Williams moved to have the case reassigned from Chief
Judge Linda R. Reade to Judge Mark W. Bennett, who had sentenced related
defendants Malone and Parks, and for disclosure of Parks’s Pre-Sentence
Investigation Report (“PSR”). Chief Judge Reade denied both motions.
At resentencing, the district court determined a final offense level of 28,3 with
a criminal history category of VI, resulting in an advisory guidelines range of 140-175
months of imprisonment. Williams moved for a variance from the guidelines range
based on the crack-to-powder cocaine ratio and to avoid unwarranted disparity with
the sentences of his accomplices. Williams also asked the court to consider post-
sentencing rehabilitation in determining a sentence.
The district court declined to vary from the guidelines range, and supplemented
the record from the original sentencing hearing with a lengthy analysis of the
sentencing factors found in 18 U.S.C. § 3553(a). The court acknowledged the
discretion of district courts to vary from the advisory guidelines. The court noted that
it had considered Williams’s personal history, including his extensive criminal history
of convictions and adjudications for drug-related offenses and violence. The court
distinguished Williams from the other defendants sentenced by Judge Bennett,
observing that unlike Parks and Malone, Williams “not only went to trial, but he lied
at trial.” The court found that Williams’s history of criminality and drug use since his
teens presented a high risk of recidivism, which affects sentencing. See 18 U.S.C. §
3553(a)(2)(C) (requiring courts to consider the need for the sentence imposed “to
protect the public from further crimes of the defendant”). Finally, the court noted that
“even if I considered his post-offense rehabilitation or conduct in the institution, my
sentence would not change or be any different.”

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The district court resentenced Williams to a 140-month term. This appeal
followed.
II.
Williams challenges the district court’s denial of (1) his motion to transfer the
case to the Judge Bennett, and (2) his motion to view the PSR and resentencing
transcript of Lamarr Parks.
A.
A district court’s denial of a motion to transfer the case to another judge is
reviewed for abuse of discretion. See Moran v. Clarke, 296 F.3d 638, 648 (8th Cir.
2002) (en banc) (motion for recusal of judge); United States v. Maynie, 257 F.3d 908,
915 (8th Cir. 2001) (motion to transfer venue to another district). Williams argues
that Chief Judge Reade abused her discretion in declining to transfer his case to Judge
Bennett for resentencing, citing judicial efficiency and the need to avoid unwarranted
sentencing disparities with his accomplices. According to Williams, the differing
sentencing philosophies of the two judges regarding the crack/powder sentencing ratio
placed Chief Judge Reade in the difficult position of “following her sentencing
philosophy and creating unwarranted sentencing disparity between Mr. Williams and
Mr. Parks based on the vagaries of which judge the cases were originally assigned to
or deviating from that sentencing philosophy in this case to avoid unwarranted
sentencing disparity.”
This court recognizes “the virtue of having the members of a criminal
conspiracy sentenced, when possible, by the same district judge.” United States v.
Lazenby, 439 F.3d 928, 934 (8th Cir. 2006). On the other hand, “[p]erfect parity
among the sentences imposed on the various members of a criminal conspiracy is no
doubt impossible to achieve, given the complexity of the task.” Id. A defendant is

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entitled to be sentenced by a competent judge familiar with the case, but “beyond this
litigants subject to the authority of the district court do not normally have any say as
to the particular judge who acts for the court.” United States v. Colon-Munoz, 292
F.3d 18, 22 (1st Cir. 2002); see also Hvass v. Graven, 257 F.2d 1, 5 (8th Cir. 1958)
(noting that “a litigant has no vested right to have his case tried before any particular
judge”).
The timing of Williams’s motion supports the government’s argument that his
motion for reassignment was judge-shopping, rather than reflecting concerns about
judicial economy and the need to spare judges from compromising their philosophy
of sentencing. The judicial economy argument actually cuts against Williams. Chief
Judge Reade presided over his trial and originally sentenced him, making her the
judge more familiar with the facts of Williams’s case and his personal history and
characteristics, including the claimed post-sentencing rehabilitation. Further,
Williams sought reassignment to Judge Bennett only after remand from this court, not
before his trial or original sentencing. Knowing that Judge Bennett granted Parks a
downward variance to the mandatory minimum based on the crack/powder ratio,
Williams understandably sought reassignment after Chief Judge Reade declined to
vary downward at the original sentencing.
A motion to change judges is properly denied when it is “essentially a ‘judge
shopping’ attempt” to have a case reassigned to another judge “in the hopes of
obtaining a more favorable result.” See United States v. Urben-Potratz, 470 F.3d 740,
745 (8th Cir. 2006); see generally Little Rock School Dist. v. Pulaski County Special
School Dist. No. 1, 839 F.2d 1296, 1302 (8th Cir. 1988) (28 U.S.C. § 455(a), the
federal recusal statute, emphatically “does not provide a vehicle for parties to shop
among judges”). A district court’s sentencing philosophy cannot form the basis for
reassignment to another judge. The district court did not abuse its discretion in
denying Williams’s motion to transfer the case.

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B.
Williams argues that the district court abused its discretion in denying his
motion for access to the PSR and the sentencing transcript of Lamarr Parks. Williams
claims he needed these materials in order to compare sentences to show disparity
under 18 U.S.C. § 3553(a)(6). The district court denied his motion, ruling that
disclosure was “not necessary.”
A district court’s decision whether to provide access to a PSR is reviewed for
abuse of discretion. See United States v. Spotted Elk, 548 F.3d 641, 672 (8th Cir.
2008); United States v. McKnight, 771 F.2d 388, 391 (8th Cir. 1985). While Fed. R.
Crim. P. 32 mandates the disclosure of the PSR to the defendant, it does not address
disclosure to a third party. There must be “some showing of special need” before a
district court releases a PSR to a third party. Spotted Elk, 548 F.3d at 672 (8th Cir.
2008); see also United States v. Jewell, 614 F.3d 911, 921-22 (8th Cir. 2010)
(describing this court’s “special need” standard as similar to the Second Circuit’s
requirement of “a threshold showing of a good faith belief that a co-defendant’s PSR
contains exculpatory evidence not available elsewhere.”) (citing United States v.
Molina, 356 F.3d 269, 274-75 (2d Cir. 2004)).
PSRs contain sensitive information, and “are generally treated as confidential.”
United States v. Shafer, 608 F.3d 1056, 1066 (8th Cir. 2010). After a showing of
special need, the district court should conduct an in camera review of the requested
report, and then disclose exculpatory or impeachment material as appropriate. See id.;
United States v. Garcia, 562 F.3d 947, 953 (8th Cir. 2009) (holding that the district
court abused its discretion in failing to carry out a review after defendant sought
access to a co-conspirator’s PSR, and the government recognized the possibility that
the PSR contained Brady material and requested in camera review).

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Williams argues that without access to Parks’s PSR and sentencing transcript,
he was handicapped in seeking a variance that could have prevented an unwarranted
sentencing disparity between Parks and himself. See 18 U.S.C. § 3553(a)(6)
(requiring sentencing courts to consider “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.”). To properly compare himself to Parks and determine whether they
have “similar records” and are guilty of “similar conduct,” Williams argues that he
should have access to the primary document used by Judge Bennett in fashioning
Parks’s sentence.
Spotted Elk is instructive. There, a defendant sought access to the PSRs and
sentencing transcripts of previously sentenced co-defendants, in order to compare
sentences to show disparity under 18 U.S.C. § 3553(a)(6). Spotted Elk, 548 F.3d at
671-72. This court affirmed the district court’s denials, finding no “special need”
because publicly available documents gave the defendant access to the information
needed to prepare for sentencing. Id. at 672. As to the sentencing transcripts, this
court noted that “it is not unreasonable to require a third party desiring information
about a defendant’s sentencing proceedings to attend the sentencing hearings.” Id.
Here, not all of the information Williams sought was publicly available (though
much was). The government’s sentencing memorandum and supplement, Parks’s
sentencing memorandum, the district court’s minute entry of the sentencing, and
Parks’s judgment—all publicly available—discussed much of Parks’s offense
conduct, criminal history, and guidelines calculation. In addition, Williams had access
to and filed with the district court the minutes from Parks’s resentencing hearing,
which showed Parks’s final adjusted offense level of 28, criminal history category I,
and an advisory sentencing range of 78-97 months. Williams also had access to and
filed with the district court Parks’s motion for a variance based on the crack/powder
ratio—the reason Williams’s and Parks’s cases were remanded. However, a full
elaboration of Parks’s offense conduct, criminal history, and personal characteristics

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4 No transcript was made of Parks’s resentencing.
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are present only in his PSR. Even if Williams’s counsel had attended the Parks
sentencing, there is no guarantee this would have given them all of the information in
the PSR. 4
The fact that a defendant is one member of a criminal conspiracy, or shares
common offense conduct with another defendant, does not automatically create a
“special need” to release a PSR in order to allow disparity arguments under 18 U.S.C.
§ 3553(a)(6). Because ready disclosure of third parties’ PSRs would likely inhibit the
flow of information to the sentencing judge, the preferred approach is for a case-by-
case focus on whether the particular defendant has demonstrated a good faith belief
that another’s PSR contains exculpatory or impeachment material not available
elsewhere (or other favorable evidence material to guilt or punishment)—a “special
need.” See Shafer, 608 F.3d at 1066.
At Williams’s original sentencing, Chief Judge Reade indicated that she had
looked at the other defendants’ PSRs. See Sent. Tr. 35 (“I asked Mr. Huss [the
Probation Officer] to go back and pull for me the presentence reports of Lamarr Parks
and Maurice Malone.”). Chief Judge Reade reasoned, “There really isn’t any way to
compare this defendant [Williams] with those two defendants,” and observed that
“[t]hey were involved in other drug transactions that Mr. Williams was not involved
in” and “their criminal histories were different.” At Williams’s resentencing, the
district court also contrasted the records and personal histories of Williams and his co-
conspirators.
Moreover, given the procedural posture of Parks’s case, Judge Bennett varied
from the advisory guidelines range based on his policy disagreement with the
crack/powder ratio. Parks’s original within-range sentence of 97 months’
imprisonment, like Williams’s, was vacated and remanded in light of Kimbrough v.

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United States. In Kimbrough, the Supreme Court held that a district court may
consider as a sentencing factor the disparity created by the 100-to-1 crack/powder
cocaine sentencing ratio in the sentencing guidelines. Kimbrough, 552 U.S. at
108-10. On remand, Judge Bennett varied downward and resentenced Parks to the
mandatory minimum of 60 months of imprisonment.
Given this history, Williams has not made a showing of special need for Parks’s
PSR or a transcript of Parks’s resentencing. Judge Bennett’s disagreement with the
crack/powder cocaine ratio is not contained within Parks’s PSR, and “it is not
unreasonable to require a third party desiring information about a defendant’s
sentencing proceedings to attend the sentencing hearings.” Spotted Elk, 548 F.3d at
672. The district court did not abuse its discretion in refusing to disclose the PSR or
sentencing transcript of Parks.
III.
Williams raises several arguments about his sentencing: the disparity between
his sentence and the sentence received by Parks; the district court’s denial of a
downward variance based on the crack/powder ratio; and the district court’s refusal
to consider post-sentence good behavior. Williams also challenges the substantive
reasonableness of the sentence.
A.
This court reviews sentences in two steps: first, for significant procedural error;
and if there is none, for substantive reasonableness. United States v. O'Connor, 567
F.3d 395, 397 (8th Cir. 2009). Procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence-including an

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explanation for any deviation from the Guidelines range.” Gall v. United States, 552
U.S. 38, 51 (2007) (emphasis added).
If there is no procedural error, this court reviews for reasonableness under a
deferential abuse of discretion standard. O’Connor, 567 F.3d at 397. A district court
may grant a downward variance after considering the factors set out in 18 U.S.C. §
3553(a). United States v. Foster, 514 F.3d 821, 824 (8th Cir. 2008). An abuse of
discretion occurs when: (1) a court fails to consider a relevant factor that should have
received significant weight; (2) a court gives significant weight to an improper or
irrelevant factor; or (3) a court considers only the appropriate factors but in weighing
them commits a clear error of judgment. United States v. Kane, 552 F.3d 748, 752
(8th Cir. 2009). A district court is not required to respond specifically to each
argument advanced by the defendant. United States v. Henson, 550 F.3d 739, 742-43
(8th Cir. 2008); United States v. Abdullahi, 520 F.3d 890, 894 (8th Cir. 2008). This
court considers the entire sentencing record, not just the court’s statements at the
hearing, in determining whether the court’s consideration of § 3553(a) was adequate.
United States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008).
Williams’s procedural challenge is that the district court failed adequately to
consider his arguments regarding alleged sentence disparity. Williams seeks a more
lenient sentence in light of the downward variance to the mandatory minimum of 60
months granted to Parks, who Williams asserts was similarly situated because of their
involvement in the same drug transaction. Williams did not object at sentencing to
the adequacy of the district court’s consideration of § 3553(a)(6), so this court reviews
for plain error. United States v. Barron, 557 F.3d 866, 868 (8th Cir. 2009). Under
plain error review, Williams must show an error, that is plain, and affects substantial
rights. See Johnson v. United States, 520 U.S. 461, 466-67 (1997). A plain error will
not be corrected unless it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993).

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At resentencing, the district court considered Williams’s argument for a
variance to avoid an unwarranted sentencing disparity. Acknowledging its “wide
discretion” to vary from the advisory guidelines based on the factors he raised, the
court declined to vary. The court found Williams “different from the other defendants
that were sentenced by Judge Bennett.” The district court noted Williams’ high risk
of recidivism, long history of criminality (Williams was in criminal history category
VI and Parks in category I), and the fact that unlike Parks and Malone, Williams “not
only went to trial, but he lied at trial.” Parks received an adjustment for acceptance
of responsibility; Williams did not (and in fact was assessed a two-level increase for
obstruction of justice). This court finds no procedural error in the district court’s
consideration of 18 U.S.C. § 3553(a)(6), as the two defendants were not similarly
situated. See United States v. Brunken, 581 F.3d 635, 638 (8th Cir. 2009) (finding
that defendant “was not similarly situated to his co-defendants because they pleaded
guilty, received substantial assistance reductions, or had lower criminal history
scores.”).
B.
In a related argument, Williams challenges the district court’s failure to vary
downward from the advisory guidelines range based on the crack/powder ratio. He
claims it was an abuse of discretion for the district court to deny his motion without
explaining its disagreement with Judge Bennett’s approach in Parks’s case. Whether
styled as an unwarranted sentencing disparity or a crack/powder disparity, Williams
essentially proposes that the need to avoid unwarranted disparity should require
district courts to consider and explain the imposition of a sentence inconsistent with
other judges in the same district, and that the denial of a request for a crack/powder
variance should call for more than a simple “No.” See United States v. Brewer, ___
F.3d ___, No. 09-3909, 2010 WL 4117368 at *7-11 (8th Cir. October 21, 2010)
(Bright, J., concurring in part and dissenting in part) (noting that a significant factor
in the length of crack cocaine sentences in the Northern District of Iowa is which side

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of the north-south interstate highway the crime was committed—this determines
which of the two active judges gets the case).
In Kimbrough, the Supreme Court held that a district court may consider as a
sentencing factor the disparity created by the 100-to-1 crack/powder sentencing ratio
in the guidelines. Kimbrough, 552 U.S. 85, 108-09 (2007). Post-Kimbrough, district
courts are not required to consider the crack-powder sentencing disparity, though they
may do so. See, e.g., United States v. Anderson, 618 F.3d 873, 883-84 (8th Cir.
2010); United States v. Woods, 603 F.3d 1037, 1040 (8th Cir. 2010). The district
court must at least recognize that it has the authority to vary downward based on the
disparity. Anderson, 618 F.3d at 883. In Spears v. United States, the Supreme Court
held that “district courts are entitled to reject and vary categorically from the
crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”
Spears, 129 S.Ct. 840, 843-44 (2009).
After hearing argument based on the crack/powder disparity at Williams’s
resentencing, the district court acknowledged its power and “very wide discretion” to
consider a variance on this basis, but declined to do so. The district court
supplemented the record from the original sentencing with an extended discussion of
its reasons for denying the variance. That the district court did not explicitly address
any policy disagreement with other sentencing courts does not convert the denial of
variance into an abuse of discretion. See United States v. Bowie, 618 F.3d 802, 811
(8th Cir. 2010) (affirming sentence where the district court was presented with
argument for a variance based on the crack-powder disparity but did not explicitly
address the motion at the sentencing hearing); see also United States v. Boyce, 564
F.3d 911, 917 (8th Cir. 2009) (“presum[ing]” the district court was aware of its
discretion to vary based on the crack-powder disparity where both counsel for the
defendant and the government discussed the district court’s discretion to vary on this
basis).

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The district court need not respond to every argument advanced by a defendant,
and the extent of explanation will vary according to the circumstances of the case. See
United States v. Lee, 553 F.3d 598, 600 (8th Cir. 2009). Less explanation is necessary
when a guideline sentence is imposed, as it was here. Rita v. United States, 551 U.S.
338, 356-57 (2007). The district court did not abuse its discretion in denying
Williams’s motion for a variance on this ground.
C.
Williams challenges the district court’s refusal to consider his post-sentence
rehabilitation at the resentencing. In this circuit, consideration of post-sentence
conduct is prohibited in a resentencing proceeding. Kane, 552 F.3d at 754-55. If
post-sentence rehabilitation could influence a defendant’s sentence, it “would be
grossly unfair to the vast majority of defendants who receive no sentencing-court
review of any positive post-sentencing rehabilitative efforts.” United States v.
McMannus, 496 F.3d 846, 852 n.4 (8th Cir. 2007). However, the Supreme Court has
granted certiorari to review this court’s position. See Pepper v. United States, 570
F.3d 958 (8th Cir. 2009), cert. granted, 130 S.Ct. 3499 (U.S. June 28, 2010) (No.
09-6822) (certiorari granted on the following questions: “Whether a federal district
judge can consider a defendant’s post-sentencing rehabilitation as a permissible factor
supporting a sentencing variance under 18 U.S.C. § 3553(a) after Gall v. United
States? Whether as a sentencing consideration under 18 U.S.C. § 3553(a),
post-sentencing rehabilitation should be treated the same as post-offense
rehabilitation.”).
In this case, the district court explicitly stated at the resentencing that “even if
I considered [Williams’s] post-offense rehabilitation or conduct in the institution, my
sentence would not change or be any different.” Therefore, any error was harmless.
See United States v. Jackson, 594 F.3d 1027, 1030 (8th Cir. 2010) (noting that
“[w]here we have a clear record that the judge intended to impose the same sentence,

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and where the court takes into account the potential impact of the specific error
alleged, it is appropriate to treat the alleged error as harmless.”) (internal citations and
quotation marks omitted) (citing United States v. Henson, 550 F.3d 739, 740-42 (8th
Cir. 2008).
D.
Williams argues that his new sentence of 140 months of imprisonment, at the
low end of his advisory guidelines range of 140-175 months, is substantively
unreasonable because it creates unwarranted sentencing disparity between himself and
his accomplice Lamarr Parks.
This court reviews the substantive reasonableness of a sentence under a
deferential abuse of discretion standard, according a “presumption of substantive
reasonableness” to sentences within the guidelines range. United States v. Luleff, 574
F.3d 566, 569 (8th Cir. 2009). An abuse of discretion occurs when: (1) a court fails
to consider a relevant factor that should have received significant weight; (2) a court
gives significant weight to an improper or irrelevant factor; or (3) a court considers
only the appropriate factors but in weighing them commits a clear error of judgment.
Kane, 552 F.3d at 752. A district court is not required to mechanically recite the 18
U.S.C. § 3553(a) factors, but it must be clear from the record that the district court
actually considered the factors in fashioning a sentence. United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc). In determining an appropriate sentence,
a district court must consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct[.]” 18 U.S.C. § 3553(a)(6); Kane, 552 F.3d at 756.
In this case, the district court considered the sentencing factors in § 3553(a) and
concluded that a sentence within the guidelines range was warranted—a conclusion
this court may presume was reasonable. See Rita v. United States, 551 U.S. 338, 347

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(2007); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005). The district
court noted Williams’s long history of criminality and drug abuse, the danger he posed
to the community, and the fact that Williams “not only went to trial, but he lied at
trial.” Given Williams’s violent and extensive criminal history, a sentence at the very
bottom of his guidelines range is not an abuse of the district court’s discretion. Cf.
United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009) (when a sentence is
below the guidelines range, “it is nearly inconceivable that the court abused its
discretion in not varying downward still further.”).
* * * * * * *
The judgment of the district court is affirmed.
______________________________

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