Summary
In United States v. Williams, 284 Fed.Appx. 212, 212 (5th Cir. 2008) (per curiam), relying on comment six, we stated that "the decision whether to grant the additional level of reduction is the district court's — not the government's — even though the court may only do so on the government's motion."
Summary of this case from U.S. v. WilliamsonOpinion
No. 07-60976 Summary Calendar.
July 11, 2008.
David Anthony Sanders, U.S. Attorney's Office Northern District of Mississippi, Oxford, MS, for Plaintiff-Appellee.
Thomas Constantine Levidiotis, Oxford, MS, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Mississippi, USDC No. 4:06-CR-67-1.
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
Defendant-Appellant Frederick Williams appeals the sentence he received after he pleaded guilty, pursuant to a written plea agreement, to distribution of more than five grams of crack cocaine. He was sentenced to 108 months of imprisonment, to be followed by five years of supervised release.
Williams asserts that the district court's decision not to award him an additional offense level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) was unreasonable. Williams's insistence that the district court's decision was not based on proof beyond a reasonable doubt is unavailing because such factual findings need only be proved by a "preponderance of the evidence." United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006). As Williams waited until the day his trial was scheduled to begin before agreeing to plead guilty (or even if we credit his assertion that he attempted to change his plea earlier in the week of trial), the district court's denial of the reduction did not constitute clear error "under a standard of review even more deferential than a pure clearly erroneous standard." United States v. Gonzales, 19 F.3d 982, 983 (5th Cir. 1994).
Williams also contends that the terms of his plea agreement show that the district court's decision not to apply the additional level of reduction was unreasonable. The plea agreement reserved for the government, however, the discretion to determine whether Williams "ultimately" deserved the additional reduction under § 3E1.1(b). Moreover, the decision whether to grant the additional level of reduction is the district court's — not the government's — even though the court may only do so on the government's motion, see § 3E1.1, comment. (n. 6). In addition, the district court's decision was supported by Williams's failure to agree timely to plead guilty. See Gonzales, 19 F.3d at 983.
Williams insists that his sentence is unreasonable and should be recalculated in light of amendments to the Guidelines that were adopted after his sentence was imposed and that reduce the disparity between powder and crack cocaine. He did not object that the 2006 version of the Guidelines, which formed the basis for his sentence, contained disproportionate penalties for offenses involving crack cocaine. Our review is therefore for plain error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007), petition for cert. filed, (Jan. 22, 2008) (No. 07-8978); United States v. Hernandez-Martinez, 485 F.3d ___ 270, 272 (5th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 325, 169 L.Ed.2d 229 (2007). Williams's broad assertions regarding this issue fail to demonstrate that there was error, that it was plain, and that it affected his substantial rights. See Peltier, 505 F.3d at 392.
Williams has not shown that the district court committed any significant procedural error in connection with sentencing or that the sentence imposed is unreasonable, see Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The judgment of the district court is AFFIRMED.