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Date: 08-08-2021
Case Style:
United States of America v. LAWRENCE WILLIAMS, AKA Mikaeel Youf Azeem
Case Number: 20-30201
Judge: A. Christian Miller
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Michael J. Ellis (argued), Assistant United States Attorney;
William D. Hyslop, United States Attorney; United States
Attorney’s Office
Defendant's Attorney:
Description:
San Francisco, California - Criminal defense lawyer represented defendant with a engaging in a fraudulent scheme to obtain part of the Social Security payments charge and revocation of his supervised release.
When a federal criminal defendant is serving a term of
supervised release and commits another crime, the court may
revoke supervised release and impose a penalty. Under the
advisory Sentencing Guidelines, the appropriate penalty
upon the revocation of supervised release is greater if the
new crime is “punishable by a term of imprisonment
exceeding one year.” U.S.S.G. § 7B1.1(a)(2); see id.
§ 7B1.4. This case presents the question whether a
Washington offense is “punishable by a term of
imprisonment exceeding one year” when the statutory
maximum sentence exceeds one year but the maximum
sentence allowed under the State’s mandatory sentencing
guidelines does not. We hold that it is not.
I
Lawrence Williams pleaded guilty to conspiracy to
distribute cocaine base, in violation of 21 U.S.C. §§ 841 and
846, and witness tampering, in violation of 18 U.S.C.
§ 1512. He was sentenced to 108 months of imprisonment,
4 UNITED STATES V. WILLIAMS
to be followed by five years of supervised release. As
required by statute, one condition of supervised release was
that Williams not “commit another Federal, State, or local
crime during the term of supervision.” 18 U.S.C.
§§ 3563(a)(1), 3583(d).
During Williams’s term of supervised release, he
engaged in a fraudulent scheme to obtain part of the Social
Security payments belonging to a mentally ill homeless
woman in Spokane, Washington. He called the woman’s
Social Security payee, falsely claiming that he was an
employee of a company called Phoenix Counseling Services
and that he was owed money for counseling services. He
asked the payee to send him a check payable to “Mikaeel
Azeem.” After mailing the check, the payee learned that
Phoenix Counseling Services employed no one by that
name. By then, Williams had already cashed the check. The
payee contacted the police; when questioned, Williams
confessed to the scheme.
The Sentencing Guidelines provide for different “grades
of . . . supervised release violations.” U.S.S.G. § 7B1.1(a).
As relevant here, a Grade B violation includes “conduct
constituting any . . . federal, state, or local offense
punishable by a term of imprisonment exceeding one year.”
Id. § 7B1.1(a)(2). A Grade C violation includes “conduct
constituting . . . a federal, state, or local offense punishable
by a term of imprisonment of one year or less.” Id.
§ 7B1.1(a)(3)(A). The grade of the violation depends on “the
defendant’s actual conduct,” and a violation “may be
charged whether or not the defendant has been the subject of
a separate federal, state, or local prosecution for such
conduct.” Id. § 7B1.1 cmt. n.1.
After a hearing, the district court found that Williams’s
conduct constituted the Washington offense of theft from a
UNITED STATES V. WILLIAMS 5
vulnerable adult in the second degree, which carries a
maximum prison term of five years. See Wash. Rev. Code
§§ 9A.20.021(1)(c), 9A.56.400(2)(b). Notwithstanding the
statutory maximum, however, a Washington court must
impose a sentence within the range of the State’s sentencing
guidelines—unlike the federal Sentencing Guidelines, “the
Washington sentencing guidelines are mandatory, not
advisory.” State v. Woodruff, 151 P.3d 1086, 1087 n.7
(Wash. Ct. App. 2007); see Wash. Rev. Code
§ 9.94A.505(2)(a) (“The court shall impose a sentence as
provided” under the guidelines.). The mandatory guidelines
range is determined by the seriousness of the offense and the
defendant’s criminal history. See Wash. Rev. Code
§ 9.94A.510. Under Washington law, an above-guidelines
sentence may be imposed only when certain aggravating
circumstances are present. See id. §§ 9.94A.535(2)–(3),
9.94A.537.
Williams argued that his conduct constituted a Grade C
violation because he faced no more than one year in prison
under Washington’s mandatory sentencing guidelines. For a
Grade C violation, the Sentencing Guidelines range would
have been four to ten months of imprisonment. The district
court disagreed and instead concluded that Williams had
committed a Grade B violation, with a Sentencing
Guidelines range of six to twelve months of imprisonment.
It reasoned that the statutory maximum sentence, not the
mandatory guidelines range, determines the term by which a
Washington offense is punishable because a Washington
court may impose a sentence “up to the maximum penalty”
if aggravating factors exist. But the district court did not
decide whether any such factors were present.
The district court sentenced Williams to twelve months
of imprisonment, to be followed by four years of supervised
6 UNITED STATES V. WILLIAMS
release. The district court stated that it would have imposed
the same sentence if Williams had committed a Grade C
violation. It directed that the sentence “be served
consecutively to any and all other terms of imprisonment,
including any and all future state sentences.”
II
Williams challenges the district court’s determination
that he committed a Grade B violation of supervised release.
We review the district court’s interpretation of the
Sentencing Guidelines de novo. United States v. Denton,
611 F.3d 646, 650 (9th Cir. 2010).
Williams’s appeal turns on what it means for an offense
to be “punishable by” a particular term of imprisonment—
specifically, on whether an offense is punishable by the
statutory maximum term of imprisonment or instead by the
maximum term that a court could impose under
Washington’s mandatory guidelines. We answered that
question in United States v. Valencia-Mendoza, 912 F.3d
1215 (9th Cir. 2019), and the answer is the same here: The
term by which a Washington offense is punishable is limited
by the upper bound of the mandatory guidelines range.
In Valencia-Mendoza, we considered Sentencing
Guidelines § 2L1.2, which increases the offense level for
unlawfully reentering the United States if the defendant was
previously convicted of a felony. 912 F.3d at 1218. That
provision defines “felony” as “any federal, state, or local
offense punishable by imprisonment for a term exceeding
one year.” Id. at 1216 (quoting U.S.S.G. § 2L1.2 cmt. n.2).
Valencia-Mendoza had been convicted of an offense under
Washington law that had a statutory maximum term of
imprisonment of five years. Id. But under Washington’s
mandatory sentencing guidelines, “the maximum sentence
UNITED STATES V. WILLIAMS 7
that he actually could have received was only six months”
because “neither the court nor the jury found an aggravating
circumstance” that could have resulted in a higher sentence.
Id. at 1218. We held that “when considering whether a crime
is ‘punishable’ by more than one year, the court must
examine both the elements and the sentencing factors that
correspond to the crime of conviction.” Id. at 1222. The term
“punishable,” we reasoned, “suggests a realistic look at what
a particular defendant actually could receive,” rather than “a
mechanistic examination of the highest possible term in the
statute.” Id. at 1223. We therefore concluded that the prior
conviction was not a felony.
We applied similar reasoning in United States v.
McAdory, 935 F.3d 838 (9th Cir. 2019), in which we
considered whether the defendant’s prior Washington
convictions were for crimes “punishable by imprisonment
for a term exceeding one year” under 18 U.S.C. § 922(g)(1),
which prohibits felons from possessing firearms. 935 F.3d at
841–42. Again, we held that offenses are “punishable by
imprisonment for a term exceeding one year . . . only if
[they] actually exposed [the defendant] to sentences of that
length.” Id. at 844. Because “[n]one of McAdory’s prior
convictions had standard sentencing ranges exceeding one
year, nor were any accompanied by written findings of any
of the statutory factors that would justify an upward
departure,” we determined that they were not predicate
felonies under section 922(g)(1). Id.
The government attempts to distinguish ValenciaMendoza and McAdory on the ground that those cases
involved provisions that require a prior conviction, whereas
section 7B1.1 refers to “conduct constituting an offense” for
which the defendant might not have been convicted. See
U.S.S.G. § 7B1.1 cmt. n.1. The distinction matters,
8 UNITED STATES V. WILLIAMS
according to the government, because without a conviction
it might be difficult to determine whether the facts satisfy
one of the aggravating factors under Washington’s
guidelines.
We disagree. As an initial matter, the government offers
no textual basis for reading the phrase “offense punishable
by” differently here than in Valencia-Mendoza. The relevant
language in the two Sentencing Guidelines provisions is
exactly the same. Compare U.S.S.G. § 2L1.2 cmt. n.2, with
id. § 7B1.1(a)(1)–(3). It is a “‘normal rule of statutory
construction’ that ‘identical words used in different parts of
the same act are intended to have the same meaning.’”
Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (quoting
Department of Revenue v. ACF Indus., Inc., 510 U.S. 332,
342 (1994)); see United States v. Lopez, 998 F.3d 431, 437
(9th Cir. 2021). The text and structure of the Sentencing
Guidelines suggest no reason to depart from the rule.
In any event, the difficulties of proof that the government
imagines are not likely to be so difficult in practice. Under
section 7B1.1, the government already must prove the facts
constituting the offense itself. The task of determining a
defendant’s criminal history and whether the defendant’s
conduct satisfies one or more aggravating factors under the
Washington guidelines is not meaningfully different. Cf.
United States v. Willis, 795 F.3d 986, 993–94 (9th Cir. 2015)
(assessing whether defendant’s conduct constituted one
crime or another under a divisible statute). Because most
cases are likely to implicate only a few potentially relevant
aggravating factors—here the government cites just two—
the government can readily demonstrate which, if any,
apply. If the district court finds those factors to be present, it
will have determined that the offense is “punishable by” the
increased sentence the Washington guidelines prescribe.
UNITED STATES V. WILLIAMS 9
Notably, we already require district courts to conduct a
similar inquiry for certain offenses in California. See
Denton, 611 F.3d at 652. Under California law, some
offenses “can be punished either as a felony or as a
misdemeanor,” at the trial court’s discretion. Id. at 651.
When conduct constituting such an offense forms the basis
for revoking supervised release, a district court must apply
the factors relied upon by California courts to “evaluate the
seriousness of the defendant’s uncharged conduct” in order
“to decide whether that conduct would be punishable by
more than one year’s imprisonment.” Id. at 652. That
process, we have explained, “is consistent with the
commentary to the Sentencing Guidelines, which urges
courts to determine the grade of a defendant’s violation
based on the defendant’s actual conduct.” Id. Determining a
defendant’s mandatory guidelines range under Washington
law involves the same type of assessment.
We acknowledge that the district court stated that it
would have imposed the same sentence even if Williams’s
conduct constituted a Grade C offense, resulting in a lower
advisory Guidelines range. An error in calculating the
applicable Guidelines range may be harmless if the district
court “acknowledges that the correct Guidelines range is in
dispute and performs [its] sentencing analysis twice.” United
States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th
Cir. 2011) (per curiam). But at the same time, “[a] district
court’s mere statement that it would impose the same aboveGuidelines sentence no matter what the correct calculation
cannot, without more, insulate the sentence from remand” if
“the court’s analysis did not flow from an initial
determination of the correct Guidelines range.” Id. at 1031.
Here, although the district court stated that it would impose
an alternative sentence above the Guidelines range, it gave
no explanation of why an above-Guidelines sentence would
10 UNITED STATES V. WILLIAMS
be appropriate. Accordingly, we cannot rely on its
alternative finding to hold the error harmless. See United
States v. Miqbel, 444 F.3d 1173, 1179 (9th Cir. 2006).
We therefore vacate the sentence and remand for
resentencing based on an assessment of the punishment that
Williams faces under Washington’s mandatory guidelines,
as determined by his actual conduct, including any
aggravating factors that the district court may find. Once the
court has determined the grade of the violation, it may
consider whether to impose a sentence outside of the
advisory Guidelines range, and, if it does, it must explain its
reasons for doing so. See United States v. Leonard, 483 F.3d
635, 637 (9th Cir. 2007); see also United States v. Carty,
520 F.3d 984, 991–93 (9th Cir. 2008) (en banc).
III
The district court ordered that Williams’s sentence “be
served consecutively to . . . any and all other terms of
imprisonment, including any and all future state sentences.”
Williams argues that the court erred by ordering the sentence
to run consecutively to any future federal sentence. Because
Williams did not object at sentencing, we review for plain
error. United States v. Gallegos, 613 F.3d 1211, 1213 (9th
Cir. 2010). “Plain error is (1) error, (2) that is plain, and
(3) that affects substantial rights. If these three conditions are
met, [we] may then exercise [our] discretion to grant relief if
the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Wang,
944 F.3d 1081, 1085 (9th Cir. 2019) (alterations in original)
(quoting United States v. Hammons, 558 F.3d 1100, 1103
(9th Cir. 2009)); see United States v. Marcus, 560 U.S. 258,
262 (2010).
UNITED STATES V. WILLIAMS 11
A district court may order a sentence to run
consecutively to an anticipated state sentence. Setser v.
United States, 566 U.S. 231, 244–45 (2012). But our
precedent “does not permit a federal sentencing court to
impose a sentence to run consecutively to another federal
sentence that has yet to be imposed.” United States v.
Montes-Ruiz, 745 F.3d 1286, 1293 (9th Cir. 2014). The
district court’s order that the sentence run consecutively to
“any and all other terms of imprisonment” plainly includes
future federal terms of imprisonment and is therefore
erroneous. Because that error is “clear or obvious” and it is
undisputed that the other requirements of plain-error review
are satisfied, “we will exercise our discretion to correct the
error.” Wang, 944 F.3d at 1088–90 (quoting Puckett v.
United States, 556 U.S. 129, 135 (2009)). On remand, the
district court should not order that the term of imprisonment
for the violation of supervised release run consecutively to
future federal sentences. That decision must be left to the
district court responsible for the imposition of any future
federal sentence. See Setser, 566 U.S. at 241 n.4.
Outcome: VACATED and REMANDED
Plaintiff's Experts:
Defendant's Experts:
Comments: