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Richmond, VA - Criminal defense lawyer represented defendant with conspiracy to distribute and possess with intent to distribute marijuana, and conspiracy to commit money laundering charges.

Lavon M. Williams pled guilty to conspiracy to distribute and possess with intent
to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, 851 (2012),
and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (2012).
Williams was sentenced to 292 months’ imprisonment for the drug conspiracy, the low
end of the Sentencing Guidelines sentence, and a concurrent term of 20 years for the
money laundering conspiracy, the statutory maximum sentence, and 8 years’ supervised
release. The district court also entered a separate criminal money judgment ordering
Williams to forfeit $1,500,000 in accordance with 21 U.S.C. § 853 (2012). Williams’
counsel filed a brief under Anders v. California, 386 U.S. 738 (1967), asserting that there
were no meritorious issues for appeal, but raising for the court’s consideration whether
Williams should have received an additional one-level decrease to his offense level for
acceptance of responsibility, and whether one of his prior convictions was improperly
counted for career offender purposes. Williams was informed of the opportunity to file a
pro se brief, but did not do so.
After Williams filed his appeal, the Supreme Court decided Honeycutt v. United
States, 137 S. Ct. 1626, 1631-32 (2017), holding that a defendant may not be held jointly
and severally liable under 21 U.S.C. § 853 for property that his coconspirator derived
from the crime, but that the defendant did not acquire. We ordered supplemental briefing
on the issue of whether Williams’ criminal money judgment was improper in light of
Honeycutt. Williams filed a brief requesting that the money judgment be vacated while
the Government filed an unopposed motion to remand the criminal money judgment. We
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granted the Government’s motion to remand, vacated the criminal money judgment,
remanded for further proceedings, and, finding no other meritorious issues on appeal,
affirmed the judgment of conviction. United States v. Williams, 736 F. App’x 389 (4th
Cir. 2018) (No. 17-4352).
The court subsequently granted Williams’ petition for rehearing on the issue of
whether it was plain error for Williams to be designated a career offender. See U.S.
Sentencing Guidelines § 4B1.1 (2015). The parties have filed supplemental briefs on the
issue and this appeal is ripe for disposition.
When Williams was sentenced, a defendant could be “jointly and severally liable
for the forfeiture of proceeds from a conspiracy.” United States v. Chittenden, 848 F.3d
188, 204 (4th Cir.) (internal quotation marks omitted), cert. granted, 138 S. Ct. 447
(2017) (vacating judgment and remanding in light of Honeycutt). Because Williams was
sentenced prior to the issuance of Honeycutt, and his appeal was pending when the
decision was announced, the rule in Honeycutt applies to his circumstance. Griffith v.
Kentucky, 479 U.S. 314, 328 (1987). It appears that Williams’ criminal money judgment
was based on an estimate of the proceeds of the drug distribution conspiracy, somewhat
more than Williams may have acquired through his participation in the conspiracy. Thus,
we conclude that it is appropriate for the district court to consider the criminal money
judgment anew with Honeycutt’s guidance. Accordingly, we grant the Government’s
unopposed motion to remand, vacate the criminal money judgment, and remand for
further proceedings consistent with this court’s opinion.
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With regard to Williams’ career offender designation in light of postsentencing
decisions in United States v. McCollum, 885 F.3d 300, 304-05 (4th Cir. 2018) (holding
that conspiracy to commit murder in aid of racketeering is not a crime of violence), and
United States v. Whitley, 737 F. App’x 147 (4th Cir. 2018) (No. 17-4343(L)) (concluding
that conspiracy to distribute and possess with intent to distribute cocaine base is not a
controlled substance offense for determining career offender status), we conclude that
there was no plain error. In reaching this conclusion, we rely on the reasoning in United
States v. Chavez-Lopez, No. 18-4183, 2019 WL 1562352 (4th Cir. Apr. 11, 2019) (argued
but unpublished), which, after considering McCollum and Whitley, decided that it was not
plain error for Chavez-Lopez to have been sentenced as a career offender. Williams’
designation as a career offender occurred under very similar circumstances. Because this
court has repeatedly concluded that a § 846 drug conspiracy is a controlled substance
offense, and neither McCollum nor Whitney distinguished this court’s precedent on the
issue, we conclude that it was not plain error for Williams to have been considered
eligible for career offender status.
We review the remainder of Williams’ sentence for reasonableness under a
deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 51
(2007); United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). In doing so, we first
examine the sentence for procedural error, which includes “failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence—
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including an explanation for any deviation from the Guidelines range.” Lymas, 781 F.3d
at 111-12 (internal quotation marks omitted). We then review the substantive
reasonableness of the sentence, “tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51. Any sentence within or below a properly calculated Guidelines
range is presumptively substantively reasonable. United States v. Louthian, 756 F.3d
295, 306 (4th Cir. 2014). “Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.
We conclude that it was not clear error for the district court to not provide an
additional one-level reduction for acceptance of responsibility. United States v. Dugger,
485 F.3d 236, 239 (4th Cir. 2007) (stating standard of review). Under USSG § 3E1.1(a)
(2015), the sentencing court should decrease the offense level by two levels if the
defendant clearly demonstrates acceptance of responsibility for his offense. When the
district court determines that the defendant qualifies for a decrease under subsection (a),
the offense level may be decreased by one additional level under USSG § 3E1.1(b), if the
government so moves, “stating that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by timely notifying authorities of his
intention to enter a plea of guilty, thereby permitting the government to avoid preparing
for trial and permitting the government and the court to allocate their resources
efficiently[.]” The Government elected not to move for an additional one-level decrease
after Williams waited until jury selection to enter his guilty plea. There is no evidence
that the Government’s decision not to move for an additional reduction was due to an
unconstitutional motive or illegitimate purpose. See United States v. Salas, 756 F.3d
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1196, 1204 (10th Cir. 2014) (noting that court may remedy Government’s refusal to
move if refusal was based on unconstitutional motive); United States v. Jones, 31 F.3d
1304, 1315 (4th Cir. 1994) (noting that on issue of timeliness, district court has
substantial discretion).
We also conclude that Williams had two prior controlled substance offenses in
order to qualify for career offender status. Under the Guidelines:
A defendant is a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.
USSG § 4B1.1(a).
The term “two prior felony convictions” means (1) the defendant
committed the instant offense of conviction subsequent to sustaining at
least two felony convictions of either a crime of violence or a controlled
substance offense (i.e., two felony convictions of a crime of violence, two
felony convictions of a controlled substance offense, or one felony
conviction of a crime of violence and one felony conviction of a controlled
substance offense), and (2) the sentences for at least two of the
aforementioned felony convictions are counted separately under the
provisions of § 4A1.1(a), (b), or (c). The date that a defendant sustained a
conviction shall be the date that the guilt of the defendant has been
established, whether by guilty plea, trial, or plea of nolo contendere.
USSG § 4B1.2(c). A sentence “imposed more than fifteen years prior to the defendant’s
commencement of the instance offense is not counted unless the defendant’s
incarceration extended into this fifteen-year period.” USSG § 4A1.1 cmt. n.1.
Here, Williams was charged with participating in the drug conspiracy that was
operating as early as August 2014. According to the PSR, in 1996, Williams was
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convicted of criminal sale of a controlled substance and was released from incarceration
in July 2000, within the applicable 15-year period. Williams was convicted again of
criminal sale of controlled substance in 2003, and released in 2006. Because both
convictions were properly counted separately toward Williams’ criminal history category,
the convictions could be used as predicate offenses for Williams’ career offender status.
Accordingly, we grant the Government’s motion to remand, vacate the criminal
money judgment, and remand the money judgment for further consideration by the
district court in light of Honeycutt. In accordance with Anders, we have reviewed the
entire record in this case and have found no other meritorious issues for appeal. We
therefore affirm Williams’ judgment of conviction. This court requires that counsel
inform Williams, in writing, of the right to petition the Supreme Court of the United
States for further review. If Williams requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must state that a copy thereof
was served on Williams.

Outcome: We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

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Defendant's Experts:

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