US v. Michael William, No. 10-4769 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4769 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL DOUGHTY WILLIAMS, a/k/a Wookie, a/k/a Wonkie, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:09-cr-00162-BR-1) Submitted: June 17, 2011 Decided: July 18, 2011 Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In May 2009, a federal grand jury returned a fivecount indictment charging Michael Doughty Williams with conspiracy to possess with intent to distribute fifty grams or more of cocaine base ( crack ), in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006) ( Count One ); three counts of distributing fifty grams or more of crack, in violation of 21 U.S.C. § 841(a)(1); and one count of distributing five grams or more of crack, in violation of 21 U.S.C. § 841(a)(1). Williams pleaded not guilty and was convicted, following a four-day jury trial, of only Count One. At sentencing, the district court granted Williams motion for a downward variance from the Guidelines range of life imprisonment and imposed a 300-month sentence. Williams timely noted this appeal, challenging his conviction and sentence. For the reasons that follow, we reject Williams appellate arguments and affirm. Williams to decision first the grant challenges Government s the motion district to court s disqualify his retained attorney, Deborrah L. Newton, arguing this violated his Sixth Amendment right to counsel of his choice. moved to disqualify Newton on the grounds The Government that her prior representation of a possible Government witness, Malcolm Dowdy, who is Williams father, created 2 a potential for a serious conflict of interest: if Dowdy were to testify against Williams, Newton would be in the position of cross-examining her former client. According to the Government, Dowdy was willing to cooperate in Williams prosecution in the hopes of receiving a Fed. R. Crim. P. 35 reduction in his sentence. Plainly, select his own Williams (retained) has a Sixth counsel. Amendment See Gonzalez-Lopez, 548 U.S. 140, 144 (2006). United right to States v. However, the right to choose one s counsel does not necessarily include the right to choose counsel that may be operating under a possible conflict of interest. Wheat v. United 486 States, U.S. 153, 159-60 (1988); see also Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir. 1990) ( [T]he Sixth Amendment right to counsel includes the right to effective assistance free of conflicts of interest[.] (citing Wood presumption v. in Georgia, favor of 450 a U.S. counsel 261, of 271 one s (1981))). choosing may The be overcome by a showing of an actual conflict of interest or the serious potential for a conflict of interest. United States v. Basham, 561 F.3d 302, 323 (4th Cir. 2009), cert. denied, 130 S. Ct. 3353 (2010). The district court has a duty to anticipate problems with representation and to promptly act to remedy a potential conflict. interest, Id. the When confronted with a potential conflict of district court is 3 obligated to independently determine impedes whether the the continued integrity of the representation proceedings attorney should thus be disqualified. 64. and by counsel whether the Wheat, 486 U.S. at 161- For this purpose, the court must have sufficiently broad discretion to rule without fear that it is setting itself up for reversal on appeal either on right-to-counsel grounds if it disqualifies the defendant s chosen lawyer, or on ineffectiveassistance grounds if it representation of the defendant. permits conflict-infected United States v. Williams, 81 F.3d 1321, 1324 (4th Cir. 1996) (citing Wheat, 486 U.S. at 160). Williams first contends there was no potential for a serious conflict of interest because Dowdy s ability to earn a Rule 35 reduction testimony, which vigorously Circuit the his would cross-examine law circumstances. of in clearly sentence not was infringe Dowdy. tied Newton s However, supports to his truthful ability controlling disqualification to Fourth under these See id. at 1324-25 (affirming disqualification defendant s attorney because he would be required to cross-examine a former client). Williams next contends that the Government lacked a good faith basis for the motion for disqualification because it did not know, at the time the motion was filed, whether Dowdy would actually testify against Williams. However, the district court contention was fully apprised of Williams 4 that the Government s inclusion of Dowdy as a potential witness was not in good faith, but ultimately concluded that this did not trump the potential for a serious conflict of interest should Dowdy be called as a Government witness. Circuit precedent. Building This ruling is in accord with See id. on this contention, Williams asserts that, because the Government s motion to disqualify Newton was made in bad faith, the continuance period following the disqualification should not have been excluded from the speedy trial calculation. Williams acknowledges that, [i]f in fact the district court judge was correct in disqualifying Ms. continuance was necessary and reasonable. 24). Newton, then the (Appellant s Br. at For the reasons explained supra, the disqualification was properly granted and thus we conclude that this claim fails. Williams next argues the jury s verdict was insufficient to trigger the enhanced penalty provision of 21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2011), because the jury did not make an explicit finding as to the threshold drug quantity attributable to him. district court failed to Williams further contends the properly instruct the jury of its obligation, pursuant to United States v. Collins, 415 F.3d 304 (4th Cir. 2005), to make a factual finding regarding the statutory threshold quantity of crack attributable to Williams. 5 Williams concedes that this claim is reviewed only for plain error because he did not raise it below. States v. Foster, 507 F.3d 233, 249 (4th See United Cir. 2007). To establish plain error, Williams must demonstrate that (1) there was error; (2) the error was plain; and (3) the error affected United States v. Olano, 507 U.S. 725, his substantial rights. 732 (1993). Williams reliance on Collins is simply misplaced. As this court recognized in Collins, § 841(b) establishes specific threshold quantities of narcotics, increasing penalties as increases. Collins, 415 F.3d at 312. the quantity which of correspond drugs to involved Following Apprendi, 1 it is the jury s responsibility to determine the specific, statutory threshold drug quantity attributable to any particular member of a drug distribution conspiracy. sentencing court s statutory range, obligation the Id. at 313-14. to find, individual drug within It is then the the quantity relevant reasonably foreseeable to the individual member of the conspiracy. See United States v. Brooks, 524 F.3d 549, 560-562 (4th Cir. 2008). This is precisely what occurred here. Williams was charged, specifically, with conspiracy to possess with intent to distribute fifty grams or more of crack. 1 Because Williams was Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). 6 the sole defendant charged in Count One, conspirators for the jury to consider. there were no co- In charging the jury, the district court identified that drug quantity was an element of Count One. Moreover, the jury s verdict form specifically referenced Count One statutory quantity of the of indictment, fifty grams which or included more of the crack. Accordingly, we discern no error in the jury verdict form or in the court s instructions regarding the threshold drug quantity and conclude that the jury s guilty verdict on Count One included the threshold drug quantity determination necessary to trigger the enhanced penalty provision of § 841(b)(1)(B). Finally, Williams attacks his sentence, arguing there was insufficient evidence to support the application of the twolevel enhancement for possession of a firearm in connection with drug activities. § 2D1.1(b)(1) defendant s defendant See U.S. Sentencing Guidelines Manual ( USSG ) (2009). offense possessed § 2D1.1(b)(1). Pursuant level a is to this increased firearm during by a two drug guideline, levels offense. the if the USSG The enhancement is proper when the weapon was possessed in connection with drug activity that was part of the same course conviction. of conduct or common scheme as the offense of United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010) (internal quotation marks omitted). 7 The Government must prove the facts needed to support a sentencing enhancement by a preponderance of the evidence. United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006). determining whether sentencing court a may sentencing consider enhancement hearsay, applies, provided that In the the information bears sufficient indicia of reliability to support United States v. Wilkinson, 590 F.3d 259, 269 its accuracy. (4th Cir. 2010). Whether the district court properly applied the enhancement under USSG § 2D1.1(b)(1) is reviewed for clear error. Manigan, 592 F.3d at 626. At Williams sentencing hearing, several police officers testified as to the disputed sentencing issues. 2 Two officers testified that, in the course of their investigations, three with cooperating or near witnesses firearms reported during having various drug observed Williams activities occurred within the time frame charged in Count One. that Williams asserts that this hearsay evidence was insufficient to satisfy the Government s burden of proof. We disagree. It is well- established that there is no bar to the use of hearsay at sentencing . . . [and a] trial 2 court may properly consider Although Williams also challenged the drug quantity attributed to him and the three-level role enhancement for being a manager or supervisor, he does not raise either of these issues on appeal. 8 uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain. United States v. Alvarado Perez, 609 F.3d 609, 618 n.4 (4th Cir. 2010) (internal quotation marks omitted). Accordingly, we hold the district court properly applied the two-level enhancement. For judgment. legal before these we affirm the district court s We dispense with oral argument because the facts and contentions the reasons, court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 9
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