United States of America v.  Herbert Williams

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4580 
HERBERT WILLIAMS,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4670 
HERBERT WILLIAMS,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(CR-04-324)
Argued: March 15, 2006
Decided: April 11, 2006
Before LUTTIG and SHEDD, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Luttig and Judge Shedd joined.

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COUNSEL
ARGUED: James Harold Babb, HOWLE & BABB, L.L.P., Sumter,
South Carolina, for Appellant. Kevin Frank McDonald, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF:
J. Strom Thurmond, Jr., United States Attorney, Columbia, South
Carolina, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
Following his guilty plea to the charge of conspiracy to make, pos-
sess, and utter forged securities, 18 U.S.C. §§ 371, 513, Herbert Wil-
liams was sentenced to thirty-six months’ imprisonment. Both
Williams and the government appealed, challenging the sentence
imposed by the district court. While the appeal and cross-appeal were
pending, the Supreme Court decided United States v. Booker, 543
U.S. 220 (2005). As a result of the Court’s decision in Booker, we
granted the government’s motion to remand Williams’ case for resen-
tencing in accordance with Booker. On remand, Williams was sen-
tenced to sixty months’ imprisonment. He appeals his sentence and,
for the reasons stated below, we affirm.
I
From approximately February 1999 until March 2001, Williams
was part of a group that stole commercial checks from businesses and
then altered them for cashing at grocery stores in South Carolina and
Georgia. As a result of his criminal activities, Williams was indicted
on several charges, but ultimately pled guilty to the charge of conspir-
acy to make, possess, and utter forged securities, 18 U.S.C. §§ 371,
513.
In preparation for sentencing, a Presentence Investigation Report
(PSR) was prepared. The PSR recommended a base offense level of
6 under United States Sentencing Commission, Guidelines Manual
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(USSG) § 2B1.1(a)(2). The PSR also recommended: (1) a 10 level
enhancement because the amount of loss was $132,984.38, USSG
§ 2B1.1(b)(1)(F); (2) a 2 level enhancement because Williams used
a social security card and a birth certificate from another person to
utter some of the stolen checks, USSG § 2B1.1(b)(9)(C)(i); (3) a 2
level enhancement because Williams used a minor to assist in the
commission of the offense, USSG § 3B1.4; (4) a 4 level enhancement
for Williams’ role in the offense, USSG § 3B1.1(a); and (5) a 3 level
reduction for acceptance of responsibility, USSG § 3E1.1.1 Conse-
quently, Williams’ total offense level of 21, coupled with his criminal
history category of VI, yielded a sentencing range of 77 to 96 months’
imprisonment. However, because the statutory maximum sentence for
the conspiracy charge was sixty months, Williams’ resulting Guide-
lines sentence was sixty months, USSG § 5G1.1(a).
At the initial sentencing on July 12, 2004, Williams argued that the
use of the amount of loss, the unauthorized use of identification, the
use of a minor, and the leadership role enhancements violated the
principles outlined in Blakely v. Washington, 542 U.S. 296 (2004).
The district court agreed and held that the sentencing enhancements
could not be applied post-Blakely. Accordingly, the court determined
it would impose a statutory sentence and sentenced Williams to thirty-
six months’ imprisonment. In imposing the sentence, the district court
observed that Williams was receiving a far more favorable sentence
than if the Guidelines had applied: "Well, I have given him credit for
two extra years that he wouldn’t get credit for if I sentenced him
under the guidelines."
On July 19, 2004, the district court entered its judgment to which
both parties appealed. While the appeal and cross-appeal were pend-
ing, the Supreme Court decided Booker. On March 30, 2005, the gov-
ernment filed a motion to have the case remanded for resentencing in
light of Booker. On April 22, 2005, we granted a "limited remand for
the purpose of resentencing . . . in accordance with the rules
announced" in Booker.
1The parties agree that the enhancements contained in the PSR were
not alleged in the indictment.
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On remand, the district court applied the principles outlined in
Booker. Because Williams’ offense level was 21 and his criminal his-
tory category was VI, his sentencing range of 77 to 96 months’
imprisonment exceeded the sixty month statutory maximum sentence.
Thus, the statutory maximum sentence of sixty months became the
Guidelines sentence, USSG § 5G1.1(a). The district court stated it
considered "the factors in [§] 3553(a)" and found that there were no
factors that warranted "a sentence other than the statutory maximum
sentence in view of the fact that the guideline sentence would be even
higher than that." The court sentenced Williams to the statutory maxi-
mum term of sixty months’ imprisonment. An amended judgment was
entered and Williams filed a timely notice of appeal.
II
Williams first contends that the district court’s application on
remand of various sentencing enhancements violated the Ex Post
Facto Clause of the Constitution. He submits that, at the time of his
criminal conduct, a sentencing court was not permitted to increase the
maximum sentencing range on the basis of facts not charged in the
indictment or proven to a jury beyond a reasonable doubt; therefore,
he reasons, retroactive application of Booker, permitting the sentenc-
ing court to apply enhancements premised on court-found facts, vio-
lates his rights guaranteed by the Ex Post Facto Clause.
In United States v. Jamison, 416 F.3d 538 (7th Cir. 2005), the Sev-
enth Circuit recognized that, even though a defendant has a right to
fair notice of criminal penalties, the retroactive application of the
remedial portion of Booker does not violate either due process or ex
post facto guarantees:
Jamison essentially seeks a sentence that comports with the
Sixth Amendment requirements of Booker, but wants to
avoid the possibility of a higher sentence under the remedial
holding of Booker. Unfortunately for Jamison, the Supreme
Court clearly instructed that both holdings should be applied
to all cases on direct review. . . . [Moreover,] Jamison knew
that he was committing a crime at the time he distributed
cocaine base. The new judicial interpretation of the law
brought about by Booker affects his punishment, not
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whether his conduct was innocent. Distributing cocaine base
was not made a crime by the Court’s decision in Booker.
Jamison also had fair warning that distributing cocaine base
was punishable by a prison term of up to twenty years, as
spelled out in the United States Code. Jamison had sufficient
warning of the possible consequences of his actions, and his
sentence does not run afoul of any of the core concepts dis-
cussed in Rogers.
Id. at 539.
Williams does not attempt to distinguish the Jamison court’s per-
suasive reasoning, nor could he. Williams was sentenced to sixty
months’ imprisonment, the statutory maximum for the conspiracy
charge. Indeed, he was warned at his guilty-plea hearing that the max-
imum term of imprisonment for which he was eligible was five years’
imprisonment. Therefore, we conclude that Williams had "fair warn-
ing" of the "possible consequences of his actions," as "spelled out in
the United States Code." Id.
Williams also argues that the sentence imposed by the district court
on remand from this court’s April 22, 2005 order is presumptively
vindictive because it is longer than the sentence imposed by the dis-
trict court at Williams’ initial sentencing. When a sentencing court
imposes a more severe sentence on remand, the reasons for the court
"doing so must affirmatively appear." Alabama v. Smith, 490 U.S.
794, 798 (1989) (citation and internal quotation marks omitted). "Oth-
erwise, a presumption arises that a greater sentence has been imposed
for a vindictive purpose—a presumption that must be rebutted by
objective information . . . justifying the increased sentence." Id. at
798-99 (citation and internal quotation marks omitted). However, the
presumption of vindictiveness does not "apply in every case where a
convicted defendant receives a higher sentence." Id. at 799 (citation
and internal quotation marks omitted). Indeed, the presumption of
vindictiveness is not designed to prevent the imposition of an
increased sentence "for some valid reason associated with the need
for flexibility and discretion in the sentencing process," but is "prem-
ised on the apparent need to guard against vindictiveness in the resen-
tencing process." Chaffin v. Stynchcombe, 412 U.S. 17, 25 (1973).
The presumption applies only where there exists a "reasonable likeli-
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hood . . . that the increase in sentence is the product of actual vindic-
tiveness," and "[w]here there is no such reasonable likelihood, the
burden remains upon the defendant to prove actual vindictiveness."
Smith, 490 U.S. at 799 (citation and internal quotation marks omit-
ted).
The district court’s justifications for the longer sentence on remand
are that it was required to apply our instructions on remand and the
Supreme Court’s decision in Booker. These justifications are plainly
"valid reason[s] associated with the need for flexibility and discretion
in the sentencing process." Chaffin, 412 U.S. at 25. Given such valid
reasons for the increased sentence, there is no reasonable likelihood
that the sentence was based on actual vindictiveness. Consequently,
the presumption of vindictiveness does not apply in this case and the
burden is on Williams to prove actual vindictiveness.
Williams offers no reason why we should find vindictiveness in a
longer sentence that results from the unique situation where the dis-
trict court understandably could not predict the remedial outcome in
Booker. In short, we hold that there is no vindictiveness in a post-
Booker sentence that exceeds the original pre-Booker sentence solely
because Booker changed the law. See United States v. Reinhart, No.
05-30245, 2006 WL 541037, at *2 (5th Cir. March 7, 2006) (holding
that higher sentence on Booker remand not vindictive); United States
v. Bad Marriage, 439 F.3d 534, 539 (9th Cir. 2006) (same); United
States v. Goldberg, 406 F.3d 891, 894 (7th Cir. 2005) (same).
Williams next contends that the sixty month sentence imposed by
the district court was unreasonable under Booker. Although the Sen-
tencing Guidelines are no longer mandatory, Booker makes clear that
a sentencing court "must consult the Guidelines and take them into
account when sentencing." 543 U.S. at 224 (Breyer, J., opinion of the
Court). The sentencing court should consider this sentencing range
along with the other factors described in 18 U.S.C. § 3553(a) and then
impose a sentence. United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). The sentence must be "within the statutorily prescribed
range . . . and is reasonable." Id. at 547. If the sentence imposed is
within the properly calculated sentencing range, it is presumptively
reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006).
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In sentencing Williams on remand, the district court considered the
properly calculated advisory sentencing range and the factors in
§ 3553(a). Because the court sentenced Williams to the sixty months
after properly considering the § 3553(a) factors, we conclude that the
sixty month sentence is reasonable.
III
For the reasons stated herein, the judgment of the district court is
affirmed.2
AFFIRMED
2We also find no merit to Williams’ argument that his sixty month sen-
tence violates his rights guaranteed by the Double Jeopardy Clause of the
Fifth Amendment.
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