United States of America, Plaintiff-appellee, v. Cleveland Williams, Defendant-appellant, 579 F.2d 369 (5th Cir. 1978)

Cleveland Williams and Jesse Shepard each were charged in a five-count indictment with one count of conspiracy to distribute heroin, two counts of possession of heroin, and two counts of distribution of heroin. In a separate five-count indictment, Williams was charged with one count of conspiracy to possess and distribute heroin, one count of possession of heroin, and one count of distribution of heroin.¹  Pursuant to a plea bargain agreement, Williams pleaded guilty to the two conspiracy counts and the government moved to dismiss the six substantive counts. In addition, the government recommended a sentence of seven years' incarceration. After considering the presentence investigation report and the testimony at the sentencing hearing, the district court sentenced Williams to consecutive sentences of five years with three years' special probation on each of the two conspiracy counts.

In this appeal Williams contends that the sentence imposed by the trial court penalized him for exercising his right against self-incrimination since the judge improperly considered Williams' failure to cooperate with the government in the prosecution of Shepard. See United States v. Rogers, 504 F.2d 1079, 1084-85 (5th Cir. 1974); United States v. Acosta, 501 F.2d 1330, 1337-38 (5th Cir. 1974) (dissenting opinion of Judge Gee captioned "The Sentencing Procedure"), Adopted en banc 509 F.2d 539 (5th Cir. 1975). This contention is based on a colloquy at the sentencing hearing beginning with an inquiry by the district judge into the status of Shepard's case. Upon being informed that Shepard was going to trial, the judge further inquired whether Williams was going to be a witness. After having been told that Williams had neither volunteered nor been asked to help the prosecution and that his testimony, though it might be helpful, was not essential to the prosecution, the judge suggested that any assistance that Williams gave the prosecution might be a relevant consideration on motion for reduction of sentence.²  After he pronounced sentence, the judge again reminded Williams' counsel that he retained jurisdiction for 120 days.

The transcript of the sentencing hearing makes clear that the district judge properly exercised his discretion³  and sentenced Williams on the basis of the seriousness of the crimes involved and Williams' background as revealed by the presentence investigation. This case is unlike those relied on by Williams, in which the judge imposed a harsher sentence than he would otherwise have imposed because of the defendant's refusal to confess or cooperate. The judge's concern with Williams' history of involvement in the drug business is expressed at several places in the record, and the judge made it plain that he also was concerned about the seriousness of the crimes for which he was imposing sentence.⁴  The judge did not give Williams an excessive sentence in order to compel him to testify against Shepard; to the contrary, he gave Williams the sentence he thought Williams deserved on the basis of the crimes and Williams' background. The judge's comments that Williams' cooperation might be a relevant consideration on a motion to reduce sentence does not require us to vacate these sentences on Williams' pleas of guilty.

AFFIRMED.