United States v. Dion Williams

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-1006

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UNITED STATES OF AMERICA

v.

DION WILLIAMS,

Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2-11-cr-00156-001)

District Judge: Honorable Stephanie L. Haines

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

on February 9, 2024

Before: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges.

(Filed: August 9, 2024)

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OPINION *

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*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

SCIRICA, Circuit Judge

Dion Williams pleaded guilty to conspiracy to distribute cocaine, assault of an

officer of the United States, and possession and discharge of a firearm during and in

relation to a crime of violence. He was sentenced to twenty years’ imprisonment.

Because Williams committed these offenses while on supervised release for a previous

drug trafficking conviction, the District Court revoked his supervision and imposed a

sixty-month term of imprisonment consecutive to his sentence for the new offenses.

Williams now argues that his revocation sentence is procedurally and substantively

unreasonable. We disagree and will affirm.

I.

We write primarily for the Parties and recite only the facts essential to our

decision. Dion Williams pleaded guilty to drug trafficking offenses and in April 2013

was sentenced to fifty-four months’ imprisonment, followed by eight years of supervised

release. Williams began his supervision in July 2016.

On June 16, 2020, Williams was indicted on one Count of conspiring to distribute

five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and

841(b)(1)(A)(ii).

In the early morning hours of June 18, 2020, a team of Bureau of Alcohol,

Tobacco, Firearms, and Explosives (“ATF”) officers executed a search warrant for

Williams’s residence in Pittsburgh, Pennsylvania. The search team used a bearcat

vehicle—a large, armored vehicle equipped with lights, sirens, and a public address

(“PA”) system—to approach the residence. The ATF officers wore uniforms and made

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their arrival known in various ways. They knocked on the doors and windows of

Williams’s residences and announced their presence. The ATF officers activated the

bearcat’s emergency lights and used its PA system to announce that police were present

with a warrant. The ATF officers also deployed two flash bang devices.

Along with other officers, ATF Officer Chris Wiegner approached one of the two

side entrances of the residence. After several officers yelled “police search warrant,”

Officer Wiegner used a ram to breach one of the doors, and the officers deployed another

flash bang device. The door then swung shut, and Officer Wiegner had to retrieve his

ram to reopen it. Officer Wiegner again yelled “police search warrant,” breached the

door, and saw Williams inside pointing a firearm at him. Appx 286. Williams fired at

Officer Wiegner, hitting him in the shoulder. Approximately twenty-three seconds

elapsed between Officer Wiegner’s first attempt to open the door and the shooting.

Officer Wiegner was taken to the hospital and later testified that he struggles with

ongoing physical and mental injuries sustained during the shooting.

Williams was charged with “intentionally forcibly assault[ing]” a federal

employee using a deadly weapon, possession and discharge of a firearm during a crime of

violence, and unlawful possession of a firearm by a convicted felon. 18 U.S.C.

§§ 111(a)(1), 111(b), 924(c)(1)(A)(i), 924(c)(1)(A)(iii), 922(g)(1) & 924(e)(1). Because

Williams committed these offenses while he was on supervision, the United States

Probation Office filed a violation petition, categorizing Williams’s drug and firearm

charges as Grade A violations.

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The Parties entered into a plea agreement to resolve the charges. 1 Fed. R. Crim. P.

11(c)(1)(C). Williams agreed to plead guilty to the lesser included offense of conspiracy

to distribute more than 500 grams but less than two kilograms of cocaine and to Counts

One and Two of the shooting indictment. 21 U.S.C. § 846; 18 U.S.C. §§ 111(a)(1),

111(b), 924(c)(1)(A)(i) & 924(c)(1)(A)(iii). The Parties stipulated to a sentence of

twenty years’ imprisonment and agreed that a revocation sentence could also be imposed.

At the change-of-plea hearing, Williams admitted to the offenses as charged and

made no objection to the Government’s recitation of the factual basis for the plea, which

included the ways the ATF officers made their presence known before executing the

search warrant. The District Court accepted Williams’s guilty plea.

At Williams’s joint sentencing and violation of supervised release hearing, the

District Court adopted the Presentence Investigation Report (“PSR”) and Williams’s

supplemental addendum, to which the Government and Probation did not object. The

addendum noted that on the day of the incident, Williams asserted to others that he did

not know he was shooting at an ATF officer.

1

Williams initially wished to proceed to trial and present, inter alia, a mistake-of-fact

defense—that he did not know he was shooting at an ATF officer. Williams filed a pro

se motion to dismiss his appointed counsel over disagreements respecting trial

preparation. At a hearing on the motion, Williams’s counsel told the court that he had

informed Williams that his proposed mistake-of-fact defense was ill-advised because

Williams’s mistaken belief that he was shooting at a robber or intruder appeared

unreasonable and because the Government only needed to establish that Williams

intended to shoot someone—not that he intended to shoot a federal agent. The court

denied Williams’s motion, finding that Williams’s counsel was providing zealous and

competent representation and that Williams’s problem with his attorney amounted to a

difference of opinion.

4

In his allocution, Williams explained that on the night of the incident, he had

smoked medical marijuana while he worked on a tattoo for a client. Williams said that

after the client left, he fell into a deep sleep in his chair “with the firearm on me.”

Appx 302. Williams also claimed he carried a firearm that night because he had

previously been robbed at gunpoint and because, around the time of the incident, a client

informed him that someone was conspiring to rob him.

Next, with the aid of surveillance footage from a store across the street and video

footage from his residence, Williams explained that he was unaware that law

enforcement had surrounded his house. Williams said that he was roused by “a loud

bang,” saw the door open, saw “a blur and a gun,” and then shot Officer Wiegner.

Appx 301. Williams claimed that it was only after he shot Officer Wiegner that he

realized that he had shot a police officer and not a robber or intruder. Williams also

stated that if he had truly acted with malicious intent—rather than out of fear for his

life— he would have shot more than once. Although Williams explained that he was

remorseful, he attributed his reflexive decision to shoot Officer Wiegner to the officers’

failure to announce themselves.

During Williams’s allocution, the District Court asked questions about his

photographic and video evidence. The District Court was also skeptical of Williams’s

apparent attempt to deemphasize his involvement in the drug trafficking conspiracy,

asking Williams to confirm that he had, in fact, pleaded guilty to the charge. After

Williams’s allocution, the District Court noted that it would take into consideration

everything Williams had said when imposing sentence and any revocation sentence. The

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Government explained that although Williams’s statements respecting the night’s events

were misleading and lacked credibility, the District Court should still accept the plea

agreement. Officer Wiegner then testified, encouraging the court to accept the plea

agreement despite his physical injuries and the emotional toll the shooting had on him.

The District Court accepted the plea agreement, noting that its decision to do so

was challenging and was made more difficult by Williams’s allocution, stating:

“[f]rankly, your allocution today did not help you in this court deciding to accept or reject

the plea agreement. In fact, it hurt you probably more than anything by what you said to

this court today.” Appx 307. The District Court ascribed particular weight to Officer

Wiegner’s “admirabl[e]” recommendation that it accept the agreement. Id. The District

Court then imposed the stipulated sentence of twenty years’ imprisonment followed by

eight years of supervised release. During its analysis of the 3553(a) factors, the District

Court discussed the nature and circumstances of Williams’s offense, including the ways

in which the ATF officers made their presence known during the search. After imposing

sentence, the District Court twice asked counsel if they wished to raise anything else

before it addressed Williams’s supervised release violations.

During the revocation portion of the hearing, the Government explained that it

would rely on the evidence introduced at Williams’s change-of-plea hearing and in his

PSR to establish the violations. Williams admitted to the Grade A violations, and as a

result the District Court found that the Government had established the violations by a

preponderance of the evidence. The District Court then determined that while Williams’s

Grade A violations resulted in a Guidelines range of fifty-one to sixty-three months’

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imprisonment, under 18 U.S.C. § 3583(e)(3), the maximum revocation sentence it could

impose was sixty months, resulting in a final Guidelines range of fifty-one to sixty

months’ imprisonment.

Williams made no objections to the Grade A violations determination or the

Guidelines calculation. Williams’s counsel attempted to explain that rather than protest

his guilt, Williams had sought to use his prior allocution to tell the Court about his state

of mind during the incident. The Government countered, stating that Williams’s

allocution instead showed that he refused to take responsibility for his actions. The

District Court revoked Williams’s supervision and sentenced him to sixty months’

imprisonment, to be served consecutively with his sentence for the new offenses. The

District Court concluded that Williams’s actions showed a “complete disregard for the

law, the victim” and the terms of his supervision, and that this term of imprisonment was

the only way to control his dangerous, “repetitive[,] and reprehensible conduct.”

Appx 314. Neither party objected to the revocation sentence, which Williams timely

appealed. 2

II. 3

When reviewing a sentencing determination, we must ensure that “‘a substantively

reasonable sentence has been imposed in a procedurally fair way.’” United States v.

2

Williams also appealed his conviction on the new charges. Because the appeal was

barred by the appellate waiver provision in his guilty plea agreement, a Panel of this

Court granted the Government’s Motion for Summary Affirmance and dismissed his

appeal. See United States v. Dion Williams, No. 23-1118, Doc. No. 34.

3

The District Court had jurisdiction over this matter under 18 U.S.C. §§ 3231 and

3583(e). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

7

Tomko, 562 F.3d 558, 566 (3d Cir. 2009) (en banc) (quoting United States v. Levinson,

543 F.3d 190, 195 (3d Cir. 2008)). We review claims for procedural and substantive

error for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). If, however,

no objection was made at sentencing to the asserted procedural error, we review for plain

error. See United States v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en banc).

“An error is plain if it is ‘clear’ or ‘obvious,’ ‘affects substantial rights,’ and

‘affects the fairness, integrity or public reputation of judicial proceedings.’” Flores-

Mejia, 759 F.3d at 259 (quoting United States v. Dragon, 471 F.3d 501, 505 (3d Cir.

2006)). “An error ‘affects substantial rights’ when it is prejudicial, that is, when it

‘affected the outcome of the District Court proceedings.’” Id. (quoting United States v.

Olano, 507 U.S. 725, 734 (1993)). Meeting this standard “is difficult, ‘as it should be.’”

Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 83 n.9 (2004)).

A.

First, Williams argues that the District Court procedurally erred when it conducted

its 3553(a)-factor analysis by failing meaningfully to consider his allocution respecting

his honest, but mistaken, belief that he was shooting at a robber or intruder, rather than an

ATF officer. 4 Williams argues that the court treated his mitigating arguments about his

4

The Parties dispute whether this issue is preserved, and thus what is the appropriate

standard of review. Williams explains that his attorney “functionally objected by alerting

the Court that [he] was not protesting guilt, but was [instead] expressing remorse.”

Williams Br. 33. “[A] defendant must raise any procedural objection to his sentence at

the time the procedural error is made, i.e., when the sentence is imposed without the court

having given meaningful review to the objection.” Flores-Mejia, 759 F.3d at 256. But

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subjective intent, intoxication, mistake, and contrition as remorseless attempts to

undermine his plea. We disagree.

A sentencing court must follow the three-step framework set out in United States

v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). As relevant here, under the third step, a

court must give “meaningful consideration to the sentencing factors set forth in 18 U.S.C.

§ 3553(a).” United States v. Freeman, 763 F.3d 322, 335 (3d Cir. 2014). This exercise

involves “acknowledg[ing] and respond[ing] to any properly presented sentencing

argument which has colorable legal merit and a factual basis.” United States v. Begin,

696 F.3d 405, 411 (3d Cir. 2012); see also United States v. Schonewolf, 905 F.3d 683,

685 n.4 (3d Cir. 2018) (explaining that courts must also consider the 3553(a) factors

when imposing revocation sentence). “Failure to give ‘meaningful consideration’ to any

such argument renders a sentence procedurally unreasonable which, when appealed,

generally requires a remand for resentencing.” Flores-Mejia, 759 F.3d at 256 (quoting

Begin, 696 F.3d at 411). But a court need not agree with every sentencing argument

made by counsel, see Tomko, 562 F.3d at 569, nor “discuss every argument made by a

litigant if an argument is clearly without merit,” United States v. Lychock, 578 F.3d 214,

where a party “make[s] an objection to a procedural error at an earlier point[,] . . . when

the procedural error became evident, the defendant need not repeat the objection after

sentence is imposed.” Id. at 255 n.1. Here, counsel did not formally object after either

sentence was pronounced, and his comments respecting Williams’s allocution—made

later during the revocation portion of the hearing—were not clearly an objection to the

court’s purportedly erroneous 3553(a)-factor analysis. Accordingly, we will apply plain

error review to Williams’s unpreserved procedural challenge. See Puckett, 556 U.S. at

135. Finally, even if we were to apply Williams’s preferred standard of review, we

would nonetheless affirm on the same basis.

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219 (3d Cir. 2009). Ultimately, procedural reasonableness is ensured if “the record as a

whole reflects rational and meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007); see also

Tomko, 562 F.3d at 568 (explaining that a court need not discuss and make findings as to

each of the 3553(a) factors).

Here, Williams’s allocution lacked a factual basis in the record, so the District

Court was not required to address it. See Lychock, 578 F.3d at 219. Williams’s

allocution ran contrary to his acquiescence to the facts adduced at his change-of-plea

hearing and in the PSR adopted at sentencing. Williams claimed he reflexively shot

Officer Wiegner as soon as the door was breached because he did not hear the police and

thought he was being threatened by a robber or intruder. But the factual record shows

that the officers announced their presence numerous times, including via the bearcat’s PA

system and by shouting each time they tried to breach the doors to Williams’s residence.

In addition, the police needed to breach the door to Williams’s residence twice, with a

twenty-three second delay between attempts, further undercutting Williams’s claim that

he made an honest mistake or snap decision. Because the main basis of Williams’s

mitigation argument—the genuineness of his belief that it was not, in fact, police at his

door—was impugned and unsupported by the factual record, the District Court did not

need to consider it in its 3553(a)-factor analysis. 5

5

For similar reasons, the District Court was not obligated to consider Williams’s addition

to the PSR that he told people the day of the incident that he did not know he had shot a

police officer. Williams’s day-of statements strain credulity given the significant efforts

by the police to announce their presence when executing the search.

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Although Williams’s allocution lacked a factual basis, the record nonetheless

reflects that the District Court meaningfully considered and rejected his version of events.

The District Court listened to Williams’s allocution and questioned him about the

evidence he presented, as well as when his statements respecting his involvement in the

drug conspiracy appeared to contradict his guilty plea. See United States v. Lessner, 498

F.3d 185, 204 (3d Cir. 2007) (questioning during defendant’s allocution reflected court’s

“studied familiarity with the facts of the offenses”). And the District Court’s statement

that Williams’s allocution hurt him more than it helped him before it ultimately accepted

the guilty plea agreement reflects that it heard Williams’s allocution and found it less

than persuasive. Under our caselaw, the District Court’s commentary on Williams’s

allocution reflects that it meaningfully considered his sentencing argument. See Flores-

Mejia, 759 F.3d at 256.

After accepting the plea agreement, the District Court’s 3553(a)-factor analysis

made clear that it was unpersuaded by Williams’s mitigation argument. When the Court

described the nature and circumstances of Williams’s offense, it reiterated that the ATF

officers made numerous efforts to make their presence known—thus rejecting Williams’s

contention that they had failed to do so.

Nor did the District Court change its position after Williams’s counsel tried to

explain his client’s allocution during the revocation proceeding. The District Court’s

conclusion that Williams’s revocation sentence reflected his “complete disregard for the

law” and was the only way to deter his dangerous and repetitive conduct demonstrates

that it did not believe Williams’s self-serving version of events. Appx 314. Accordingly,

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any error the District Court may have made in its consideration of Williams’s allocution

was not plain. See Puckett, 556 U.S. at 135.

B.

Next, Williams urges that the District Court erred in finding that his conviction for

shooting a federal agent qualified as a Grade A violation of his supervised release

because 18 U.S.C. § 111(b) is not categorically a crime of violence. 6 Williams’s

argument fails, however, as we do not apply the categorial approach in the revocation

context. United States v. Carter, 730 F.3d 187, 192 (3d Cir. 2013). Instead, a court “may

consider a defendant’s actual conduct,” and not just the formal elements of an offense of

conviction, “in determining whether they have broken the law and thus the terms of their

supervised release.” Id.; see also U.S.S.G. § 7B1.1 cmt. n.1 (“[T]he grade of violation is

to be based on the defendant’s actual conduct”). In doing so, a court must identify the

specific forcible offense because its consideration of the defendant’s actual conduct must

ultimately address the elements of the crime committed. See Carter, 730 F.3d at 192–93.

The United States Sentencing Guidelines set forth three grades of supervised

release violations. U.S.S.G. § 7B1.1(a). A Grade A violation, the most serious grade of

violation, is “conduct constituting . . . a federal, state, or local offense punishable by a

term of imprisonment exceeding one year that . . . is a crime of violence.” Id. at

§ 7B.1(a)(1). A “crime of violence,” is an “offense under federal or state law, punishable

by imprisonment for a term exceeding one year, that . . . has as an element the use,

6

Williams concedes that this argument is unpreserved, so we review for plain error. See

Puckett, 556 U.S. at 134.

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attempted use, or threatened use of physical force against the person of another.”

U.S.S.G. § 4B1.2(a)(1); see also U.S.S.G. § 7B1.1, cmt. n.2 (incorporating the term

“crime of violence” as defined in Section 4B1.2(a), the career offender Guideline, into

the definition of a Grade A violation). Physical force, in turn, “means violent force—that

is, force capable of causing physical pain or injury to another person.” Johnson v. United

States, 559 U.S. 133, 140 (2010).

Here, the District Court correctly determined that Williams’s conviction under 18

U.S.C. § 111(b) constituted a Grade A violation of his supervision. When the District

Court asked the Government what evidence it would use to prove that Williams

committed the violations, the Government explained that it would rely on the evidence

presented at Williams’s change-of-plea hearing and the offense conduct in the PSR. At

the change-of-plea hearing, Williams pleaded guilty to “intentionally[,] forcibly

assault[ing]” an officer of the United States as charged in the indictment in violation of

18 U.S.C. §§ 111(a)(1) and 111(b). Appx 208. Because Williams admitted to the assault

as charged, he conceded that he intentionally used physical force against his victim—and

thus committed a crime of violence. See United States v. Bullock, 970 F.3d 210, 215 (3d

Cir. 2020) (explaining that 18 U.S.C. § 111(b) “necessarily requires a finding [that] the

defendant intentionally used, attempted to use, or threatened to use physical force against

the person of another” (internal quotation markets and alterations omitted)). And because

this crime of violence is punishable by up to twenty years’ imprisonment, it satisfies the

duration of incarceration required for a Grade A violation. See 18 U.S.C. § 111(b);

U.S.S.G. § 7B1.1(a)(1). Accordingly, the District Court committed no error in

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determining that Williams committed the Grade A violation.

C.

Finally, Williams challenges the substantive reasonableness of his consecutive

sixty-month revocation sentence. We consider “whether the record as a whole reflects

rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a)”

when reviewing the substantive reasonableness of a sentence. Tomko, 562 F.3d at 568.

A defendant bears a “heavy burden” to show that a within-Guidelines sentence is

substantively unreasonable, United States v. Fountain, 792 F.3d 310, 323 (3d Cir. 2015),

because we presume a properly calculated Guidelines-range sentence to be substantively

reasonable, Rita v. United States, 551 U.S. 338, 347 (2007). We will affirm “unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Fountain, 792 F.3d at 322 (quoting

United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011)).

Williams takes issue with the District Court’s assessment of the mitigating

evidence he presented. Yet a failure to weigh mitigating evidence to the extent a

defendant would prefer does not result in a substantively unreasonable sentence. United

States v. Young, 634 F.3d 233, 243 (3d Cir. 2011). As we have discussed, the District

Court heard Williams’s allocution, found it unpersuasive, and imposed a consecutive

revocation sentence because it reflected the seriousness of his supervised release

violations. In these circumstances, we do not find Williams’s revocation sentence

substantively unreasonable.

III.

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For the foregoing reasons, we will affirm Williams’s revocation sentence.

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