Petition for Writ of Certiorari — Michael Angelo Williams, Petitioner v. United States

DOCKET NUMBER: __________________

____________________________

IN THE SUPREME COURT OF THE UNITED STATES

____________________________

MICHAEL ANGELO WILLIAMS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

____________________________

PETITION FOR WRIT OF CERTIORARI

BLAKE P. SOMERS (0078006)

Counsel of Record for Petitioner

Blake P. Somers LLC

114 East 8th Street

Cincinnati, Ohio 45202

513.587.2892

513.621.2525 (fax)

513.702.1448 (cell)

Blake@BlakeSomers.com

QUESTIONS PRESENTED

Whether this honorable Court should grant certiorari to review whether Mr.

Williams should have been permitted to withdraw his guilty plea, which request

was filed less than three weeks after Mr. Williams received new counsel?

Whether this honorable Court should grant certiorari to review the Sixth Circuit’s

determination that harmless error subsumed Mr. Williams’ arguments regarding

his U.S.S.G. §2D1.1(b)(1) sentencing enhancement?

Whether this honorable Court should grant certiorari to review the substantive

reasonableness of Mr. Williams’ sentence?

i

PARTIES TO THE PROCEEDINGS

The parties to the proceedings, both in the Federal District Court for the

Eastern District of Kentucky, Northern Division, as well as in the United States

Court of Appeals for the Sixth Circuit, included the United States of America,

Respondent herein, and Michael Angelo Williams, the Petitioner herein. There are

no parties to these present proceedings other than those named in the Petition.

ii

TABLE OF CONTENTS

Questions Presented………………………………………………..…………………………..i

Parties to the Proceedings…………………………………………………………………….ii

Table of Contents…………………………………………………...…………………………iii

Table of Authorities………………………………………………...………………………….v

Petition for Writ of Certiorari…………………………………...…………………………...1

Opinions Below..……….…………………………………………..………..………………….1

Statement of Jurisdiction...………………………………………………………..………….1

Statutory Provisions and Rules of Court Involved..……………………………………….2

Statement of the Case...……………………………………………………………………….3

Reasons for Granting the Writ………………………………………………………………11

I. Certiorari is requested to review whether Mr. Williams should

have been permitted to withdraw his guilty plea, a request that

was submitted less than three weeks after he was appointed

new counsel in the District Court.………………………………………………….11

II. Certiorari is requested to review the Sixth Circuit’s determination

that “harmless error” governed the disposition of Mr. Williams’

arguments regarding his §2D1.1 enhancement.………………………………….16

III.Certiorari is requested to review the substantive reasonableness

of Mr. Williams’ sentence.……………………………………………………………22

Conclusion……………………………………………………………………………………..24

Appendix A – United States of America v. Michael Angelo Williams, Decision

of the United States Court of Appeals for the Sixth Circuit, unpublished, docket

number 20-5564; issued April 23, 2021…………………………………………………….A

iii

Appendix B – United States of America v. Michael Angelo Williams, Judgment

of the United States District Court for the Eastern District of Kentucky, Northern

Division, unpublished, Docket Number 2:19-CR-60-DLB-CJS, Filed May 13, 2020...B

Appendix C – Text of Federal Rule of Criminal Procedure 11(d)………………..C

Appendix D – Text of U.S.S.G. §2D1.1(b)(1)………………………………………..D

Appendix E – Text of 18 U.S.C. §3553(a)……………………………………….…..E

iv

TABLE OF AUTHORITIES

Cases

Gall v. United States, 552 U.S. 38 (2007)……..…………………..………………………22

Molina-Martinez v. United States, 578 U.S. ____ (2016)……..………………………...18

United States v. Bashara, 27 F.3d 1174 (6th Cir. 1994)……………………...passim, 11

United States v. Bishop, 797 Fed.Appx. 208 (6th Cir. 2019)19……..…………………..19

United States v. Buchanan, 933 F.3d 501 (6th Cir. 2019)……..………………………..19

United States v. Catchings, 708 F.3d 710, (6th Cir. 2013)……..………………………..11

United States v. Collins, 800 Fed.Appx. 361 (6th Cir. 2020)……..…………………17-21

United States v. Ely, 468 F.3d 399 (6th Cir. 2006)..……..……………………………….22

United States v. Faulkner, 926 F.3d 266 (6th Cir. 2019)……..………………………….17

United States v. Frei, 995 F.3d 561 (6th Cir. 2021)……..………………………………..22

United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009) ……..………………..22

United States v. Hockenberry, 730 F.3d 645 (6th Cir. 2013)……..……………………...11

United States v. Martin, 668 F.3d 787 (6th Cir. 2012)……..……………………………14

United States v. Maxwell, 678 F.App’x. 395 (6th Cir. 2017)……..………………………19

United States v. Mizori, 601 F.App’x 425 (6th Cir. 2015)……..…………………………19

United States v. Morrison, 852 F.3d 488 (6th Cir. 2017)……..……………………..17, 19

United States v. Sachs, 801 F.2d 839 (6th Cir. 1986)……..……………………………..14

United States v. Spencer, 836 F.2d 236 (6th Cir. 1987)……..……………………………15

United States v. Steel, 609 Fed.Appx. 851 (6th Cir. 2015)……..……………………20-21

United States v. Tristan-Madrigal, 601 F.3d 629 (6th Cir. 2010)……..…………….…22

United States v. Ward, 506 F.3d 468 (6th Cir. 2007)……..………………………………17

v

Statutes and Rules

18 U.S.C. §3231…………………………………….…………………..…………………….1, 3

18 U.S.C. §3553(a)……………………………….…………………..………….passim, 22-23

28 U.S.C. §1254…………………………………….…………………..…………….…………1

28 U.S.C. §1291……………………………….…………………………..…………………….1

U.S.S.G. §2D1.1……………………………….…………………..………………...passim, 16

Supreme Court Rule 13.1………………………………………………………….…………..1

Federal Rule of Criminal Procedure 11…………………………………………..passim, 11

vi

PETITION FOR A WRIT OF CERTIORARI

Mr. Michael Angelo Williams (hereinafter, Mr. Williams) hereby respectfully

petitions for a writ of certiorari to review the opinion and judgment of the United

States Court of Appeals for the Sixth Circuit issued April 23, 2021.

OPINIONS BELOW

The Decision of the Sixth Circuit in this matter was issued on April 23, 2021.

It was not selected for full-text publication, and is reproduced at Petitioner’s

Appendix A.

The relevant District Court Judgment underlying Mr. Williams’ conviction was

not published, but, is reproduced at Petitioner’s Appendix B.

STATEMENT OF JURISDICTION

Because the underlying cases involved a federal indictment against Mr.

Williams for violations of federal law, the United States District Court for the Eastern

District of Kentucky, Northern Division, had jurisdiction pursuant to 18 U.S.C.

§3231. Because Petitioner Williams timely filed a notice of appeal from the final

judgment of a United States District Court, the United States Court of Appeals for

the Sixth Circuit had jurisdiction pursuant to 28 U.S.C. §1291. Because Petitioner

Williams is timely filing this Petition for Writ of Certiorari within the time allowed

by the Supreme Court Rules from the Sixth Circuit’s Decision on April 23, 2021, this

honorable Court has jurisdiction pursuant to 28 U.S.C. §1254. See also, Supreme

Court Rule 13.1.

1

STATUTORY PROVISIONS AND RULES OF COURT INVOLVED

The relevant Rules and statutory provisions are Federal Rule of Criminal

Procedure 11(d), U.S.S.G. § 2D1.1(b)(1), and 18 U.S.C. §3553(a), all of which are set

forth, respectively, in the attached Petitioner’s Appendix C, D, and E.

2

STATEMENT OF THE CASE

On August 8, 2019, Petitioner Williams was named as the sole Defendant in a

five-count Indictment issued by a federal grand jury in the Eastern District of

Kentucky. (Indictment) (RE: 3) (Page ID#3-7). Count One of that Indictment charged

Mr. Williams with having conspired with others to distribute (and possess with intent

to distribute) 50 grams or more of methamphetamine between January 1, 2019, and

August 8, 2019, in violation of 21 U.S.C. §846 (Count 1). Id. The remaining four

Courts charged Mr. Williams with having knowingly and intentionally distributed

methamphetamine on March 11, 2019 (alleging 50 or more grams), March 26, 2019

(alleging 5 or more grams), April 17, 2019 (alleging 5 or more grams), and May 6,

2019 (alleging 5 or more grams), in violation of 21 U.S.C. §841.

Through his first appointed counsel, Mr. Williams requested to enter a guilty

plea to the Indictment, and a hearing on that request was held on October 9, 2019.

See, (Motion for Rearraignment); (RE: 15)(Page ID: 35); see also, Transcript of

Rearraignment (hereinafter T.p. RAR) at 2; Page ID 323. After a colloquy, the District

Court found that Mr. Williams was competent to enter an informed plea, that he was

aware of the nature of the charges, and that his plea of guilty had been knowing and

voluntary. Id. at 25-26; Page ID 346-347. The Court therefore accepted Mr. Williams’

plea and found him guilty. Id. at 26; Page ID 347.

Prior to sentencing, Mr. Williams’ original trial counsel moved to withdraw

from representation, stating that “the attorney/client relationship has deteriorated,

and Counsel cannot continue to represent Defendant effectively.” Motion to

3

Withdraw; RE: 19; Page ID 43. At a hearing on that Motion, it became clear that not

only was Mr. Williams’ first counsel seeking to withdraw from representation, but

Mr. Williams was also seeking to withdraw his guilty plea to Count 1 of his

Indictment based on his assertion that he could not be charged and tried with

conspiracy because he had no co-defendants. See, Transcript of Motion Hearing

(hereinafter, T.p. MH); RE: 57; Page ID 248; 251-252. New counsel was appointed,

and Mr. Williams was ordered to file, through counsel, a Motion to Withdraw his

guilty plea to Count One, if ever, by February 18, 2020. Id. at 7, 13-14; Page ID: 254,

260-261.

New counsel for Mr. Williams filed that Motion less than three weeks later, on

February 18, 2020. See, Motion to Withdraw Guilty Plea to Count I of the Indictment;

RE: 22; Page ID: 48-49. In that Motion, Mr. Williams asserted that “there is no

indicted co-defendant with whom the Defendant could have engaged in this

conspiracy. The Defendant asserts the United States i[s] unable to prove the

conspiracy as there is no other individual charged with engaging in the conspiracy

with him.” Id. Further, Mr. Williams stated that “this is a defense of which he was

not aware until he engaged in independent research on his own” and that “[o]nce he

discovered this potential defense, the Defendant informed his counsel immediately

upon discovering this potential defense and requested that a Motion be filed

requesting his plea to Count I be withdrawn.” Id. Finally, Mr. Williams stated that

he had “never been under indictment for a conspiracy charge and ha[d] no

4

understanding of the potential defenses available to him,” and that he had “never

been a defendant in a federal case.” Id. at 2; Page ID: 49.

The United States filed its reply in opposition on March 3, 2020, and the

District Court denied Mr. Williams’ Motion on April 7, 2020. See, Objection to Motion

to Withdraw Guilty Plea; RE: 24; Page ID: 52; see also, Memorandum Opinion and

Order; RE: 30; Page ID 81-88. The District Court analyzed Mr. Williams’ claims

primarily under F.R.Crim.P. 11(d)(2)(B) and United States v. Bashara, 27 F.3d 1174

(6th Cir. 1994) to determine whether a fair and just reason existed for withdrawing

the plea. Id. at 3-4; Page ID 83-84. However, the Court denied the Motion finding

that it was untimely, that there was no basis for the delay, and that the potential

defense could have been brought to the Court’s attention earlier. Id. at 5; Page ID

85. The Court also found that there had been no claim of actual innocence, and that

Mr. Williams’ proposed defense was “not a defense at all.” Id. at 5-6; Page ID 85-86.

Further, the Court found that the circumstances surrounding the guilty plea, the

background of Mr. Williams, along with Mr. Williams’ prior history of criminal

convictions (and thus his “familiarity with the court system and the process of

entering guilty pleas”) favored denial of the Motion. Id. at 6-7; Page ID 86-87. The

Court also found that there may be slight prejudice to the government, favoring

denial of the Motion, and, that Mr. Williams had not raised a valid legal defense to

his charge. Id. at 7-8; Page ID 87-88. The Court therefore denied Mr. Williams’

Motion. Order; RE: 33; Page ID: 124.

5

Prior to sentencing, Mr. Williams again moved the District Court to allow him

to withdraw his guilty plea to Count 1 in the Indictment. See, Second Motion to

Withdraw Guilty Plea to Count 1 of the Indictment; RE: 41; Page ID 154. In that

Motion, Mr. Williams stated that he had begun to realize, in a meeting with his first

attorney on January 13, 2020, that he had not seen or understood all of the discovery

in his case, which led to an “irreconcilable breakdown in the attorney client

relationship.” Id. That Motion also noted Mr. Williams’ educational difficulties. Id.

Further, Mr. Williams’ new counsel indicated that during the course of “several

conversations with Mr. Williams” which had occurred “within the past few weeks,”

she had determined that Mr. Williams “had either not seen all of the discovery in his

case, or did not understand the discovery.” Id. at 2; Page ID: 155. As such, Mr.

Williams’ second appointed attorney had provided him “with printed copies of all

documents tendered by the United States and ha[d] discussed [the] same with Mr.

Williams.” Id. Further, Mr. Williams stated that he “believes he did not knowingly

and voluntarily enter his guilty plea to Count I of the Indictment,” and that there

were “discrepancies relative to Count I which should have been explored but were

not,” and that there were “issues regarding the facts which Mr. Williams did not

understand until he recently reviewed complete discovery.” Id. Finally, it was noted

that these issues were not brought to Mr. Williams’ new counsel upon her

appointment, and that Mr. Williams had asserted that he “did not know there were

issues with the discovery until he realized he had not seen or understood the full

discovery.” Id.

6

On May 13, 2020, the parties appeared before the District Court for sentencing

and for consideration of Mr. Williams’ most recent Motion to withdraw his plea. T.p.

Sentencing; RE 58; Page ID 264. As to that Motion, Mr. Williams, through counsel,

indicated that he believed there was only one cooperating source, whereas the United

States had identified three. Id. at 6; Page ID 269. Counsel further indicated that this

had not arisen until Mr. Williams and counsel had discussed their sentencing

memorandum, and that between the first Motion and the scheduling of a sentencing

hearing, Mr. Williams had been moved to a different location in the jail, where he

“had been given access to books and reading materials and federal inmates.” Id. at 7;

Page ID: 270. Through these conversations, trial counsel indicated that she had

discovered that Mr. Williams had not “seen or reviewed all of the discovery,” although

he had reviewed “the vast amount of the discovery and he watched the videos, listened

to the audios of the transactions. . .”. Id. Thus, while Mr. Williams acknowledged the

late date of his Second Motion, it was “based on the premise that he felt like he was

not fully informed when he entered the guilty plea.” Id. at 7-8; Page ID: 270-271.

After argument, the Court below denied Mr. Williams’ Second Motion to

Withdraw the Plea. The Court found that the Defendant’s answers (presumably at

the plea hearing) had been and were truthful, and that there was not a legitimate

basis under the Bashara factors which would allow for a withdrawal of a guilty plea

at such a late date. ID. at 12; Page ID 275. The Court therefore proceeded to

sentencing.

7

First, the Court considered whether an additional sale should be added as

relevant conduct, and whether a gun enhancement should be applied. On these items,

the District Court received testimony from an FBI Task Force Officer. After the

conclusion of the testimony from the Officer, and after receiving the arguments of

counsel, the District Court found that the two-level gun enhancement was

appropriate. Id. at 35; Page ID 298.

The Court below ultimately sentenced Mr. Williams to 150 months in prison,

along with GED, RDAP, and job skills/vocational programming and a 5-year period

of supervised release with mandatory, additional, and special conditions. Id. at 4849; Page ID 311-312. Fines and community restitution were waived, but a $100

special assessment on each count was ordered. Id. at 51; Page ID 314.

As to the sentence itself, the District Court offered the following explanatory

statements:

Now, I'm going to make a statement quickly because I think it's

significant here. Whether or not the Court enhanced the two levels or

not, if I had sustained your objection, the guideline range would be 120

to 150. I overruled it for the reasons previously stated so the guideline

range now is 140 to 175. That advisory range is one of the factors, among

these others, that I have to consider, and I have done so.

Because of your individual circumstances with your background, despite

all the problems that you've encountered, I am going to sentence within

the overlapped range. And the reason I'm making a statement about it

is even if the Court of Appeals, upon reviewing my determination here,

were to find that -- you know what? -- we don't think collectively, as a

three-judge panel, that there was enough for Judge Bunning to impose

the two-level enhancement for the gun, and we think that the guidelines

should have been 120 to 150, well, ultimately, the sentence I'm imposing

is 150. It is the high end of that range. It is in the middle of the 140 to

175 range.

8

So even if they were to reverse that enhancement and find that I made

a legal error in doing that, the sentence I'm imposing would be in the

range that would be the range without the enhancement.

Id. at 46-47; Page ID 309-310.

Further, the Court stated:

I think a sentence at the high end of that range, in the middle of the

actual range I'm using, is appropriate because of your history of using

and possessing handguns, that you have a substantial recidivism

behavior, a history of violating conditions of release, and the fact that

you had that handgun at the time in your vehicle.

All of those support a sentence toward the higher end of the 140 to 175.

But because of your individual circumstances as described by your

attorney, I'm choosing to sentence within the 140 to 175; actually,

toward the bottom, if you want to do the math.

Id. at 47-48; Page ID: 310-311.

Mr. Williams timely appealed, asserting three arguments: (1) that the District

Court had erred when it denied him leave to withdraw his plea; (2) that the District

Court had erred in imposing the gun enhancement under U.S.S.G.§2D1.1(b)(1); and,

(3) that the District Court’s sentence was substantively unreasonably under 18 U.S.C.

§3553(a). See generally, Appellant Brief filed October 28, 2020. The United States

responded, arguing that the District Court had properly rejected Mr. Williams’

attempts to withdraw his plea, that the 2D1.1 enhancement was properly applied

and, in any event, would have amounted to nothing more than harmless error given

the District Court’s statements at sentencing, and that the sentence was

substantively reasonable. See, Appellee Brief filed December 23, 2020.

The Sixth Circuit denied Mr. Williams’ appeal on April 23, 2021. See generally,

Opinion Below at Appx. A. First, the Court below found that District Court had

9

properly rejected Mr. Williams’ attempts to withdraw his guilty plea. Id. at 4-8. Next,

the Court rejected Mr. Williams’ gun enhancement arguments, stating that “even if

the district court did erroneously apply the dangerous-weapon enhancement, that

error would have been harmless.” Id. at 8. The Court below, therefore, did not analyze

the substance of Mr. Williams’ claims on this item, and instead based its decision on

the District Court’s statements at sentencing. Id. at 8-9. Finally, the Court rejected

Williams’ substantive reasonableness arguments, finding that he was arguing that

the factors had been improperly balanced, and that the argument was therefore

“’‘beyond the scope’” of the Court’s review. Id. at 9-10.

The Court, therefore, affirmed the judgment of the District Court, and this

Petition timely follows.

10

REASONS FOR GRANTING THE WRIT

I.

Certiorari is requested to review whether Mr. Williams should have been

permitted to withdraw his guilty plea, a request that was submitted less

than three weeks after he was appointed new counsel in the District Court.

Federal Rule of Criminal Procedure 11(d) states that “a defendant may

withdraw a plea of guilty or nolo contendere . . . after the court accepts the plea, but

before it imposes sentence if. . . the defendant can show a fair and just reason for

requesting the withdrawal.” Id. The Sixth Circuit reviews a District Court’s decision

on a Motion to Withdraw a Guilty Plea for abuse of discretion. See generally, United

States v. Hockenberry, 730 F.3d 645, 661-662 (6th Cir. 2013); citing and quoting,

United States v. Catchings, 708 F.3d 710, 717 (6th Cir. 2013). Sixth Circuit precedent

provides a non-exclusive list of factors for consideration when making a

determination of whether a “fair and just reason” exists for withdrawing a plea,

including:

(1) the amount of time that elapsed between the plea and the motion to

withdraw it; (2) the presence (or absence) of a valid reason for the failure

to move for withdrawal earlier in the proceedings; (3) whether the

defendant has asserted or maintained his innocence; (4) the

circumstances underlying the entry of the guilty plea; (5) the defendant’s

nature and background; (6) the degree to which the defendant has had

prior experience with the criminal justice system; and (7) potential

prejudice to the government if the motion to withdraw is granted.

See, Hockenberry at 662; citing Catchings, at 717-718; see also, United States v.

Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994); see also, Memorandum Opinion and

Order (denying Motion to Withdraw Plea); (RE: 30) (Page ID 84). Before the Sixth

Circuit, Mr. Williams argued that these factors should have weighed in favor of

11

allowing him to withdraw his plea. See, Appellant Brief at 29–36; CM/ECF Pages

34–41.

Specifically, in his brief, Mr. Williams recognized that 132 days had passed

between his guilty plea and the filing of his First Motion to Withdraw his plea, and

that the Sixth Circuit (and others) had previously found far shorter delays to be

problematic. See, App.Br. at 30; CM/ECF Page 35 (citing cases).

However, Mr.

Williams argued that his delay was mitigated by a number of facts, including (a) the

timing of when Mr. Williams realized that he had not seen or understood all of the

discovery in the case (which he calculated as 35 days prior to the filing of his motion);

(b) the timing of his first attorney’s request to withdraw from representation (which

he calculated as 34 days prior to the filing of his Motion); and, (c) his first counsel’s

withdrawal and the appointment of new counsel, after which his Motion was filed

only 20 days later. Id. at 30-31; CM/ECF pages 36-37. Mr. Williams also argued

that his delay was further mitigated by the suggestions in the record that, even after

the first Motion was filed, he still had not had full access to or understanding of the

discovery in his case, that he had a limited educational background, and that he had

recently been moved to a new location in his jail where he had access to different

materials. ID. at 31-32; CM/ECF Pages 36-37. As such, and while acknowledging the

significant, numerical length of the delay between plea and Motion, Mr. Williams

argued that there were valid explanations for his delay, that his Motion had been

filed by new counsel within three weeks of her appointment, and that this factor

weighed in favor of granting leave to withdraw his plea.

12

The Sixth Circuit’s decision did not address the full merits of these arguments.

True, the Court did address the length of the delay, finding that this factor weighed

in favor of the government. See, Opinion Below at Appx. A, page 5 (stating, “Our

Court has denied motions to withdraw guilty pleas where less time has elapsed

between the guilty plea and the motion to withdraw the plea.”). And the Court

addressed (and rejected) Mr. Williams’ arguments regarding his meeting with his

attorney and his discovery-related realizations on January 13, 2020 (and,

presumably, the sub-issues raised therein). Id. at 5-6.

However, the Court below did not address the fact that Mr. Williams’ new

attorney had filed the Motion to Withdraw Mr. Williams’ plea within three weeks of

her appointment, a very brief period of time, and, indeed, a period which is less than

the periods elapsed in the timeliness cases cited in the decision of the Court below.

Id. at 5-6. As such, it is therefore respectfully submitted that a grant of certiorari and

a remand to the Circuit Court would be appropriate in order to allow the Circuit Court

to address this particular issue in the first instance.

Furthermore, Mr. Williams submits that the remaining factors actually weigh

in his favor, and that the Sixth Circuit erred in holding otherwise. For instance, the

Sixth Circuit rejected Mr. Williams’ claims regarding his assertion of innocence. See,

Opinion Below at 6. First, the Court found that Mr. Williams had admitted during

his rearraignment hearing that he had “conspired with at least one other person to

distribute and possess with intent to distribute at least 50 grams of

methamphetamine” which the Court found “surely undermine[d] his innocence

13

claim.” Id. Further, the Court below acknowledged Circuit precedent stating that

“‘statements of guilt under oath at a plea hearing support the district judge’s decision

not to permit withdrawal.’” Id. quoting United States v. Martin, 668 F.3d 787, 796

(6th Cir. 2012). The Court also found that Mr. Williams’ claimed defense was not

actually an assertion of innocence, but was instead “merely a flawed legal argument.”

Id., citing, United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986).

However, in his principal Brief below, Mr. Williams had argued that it was

“questionable” to review a Defendant’s “assertion of innocence” because “the very fact

that an individual is seeking to withdraw a ‘guilty plea’ presupposes the fact that, at

some point, the individual has not, in fact, maintained their innocence.” App.Br. at

33; CM/ECF Page 38. Further, Mr. Williams noted that he had maintained his belief

that he could not be convicted of a conspiracy as charged. Id. As such, Mr. Williams

submits that the Sixth Circuit erred on its analysis of this prong and that certiorari

should be granted to reverse and remand these proceedings to the Court below.

The Sixth Circuit also found that the circumstances surrounding Mr. Williams’

plea of guilty weighed in favor of the government. See, Opinion Below at 7. Although

Mr. Williams contended that he had not received or understood all the discovery in

his case at the time of his plea, the Court found that Mr. Williams had not

“explain[ed] why he was inclined to alter his plea after acquiring additional evidence

through discovery.” Id.

Indeed, Mr. Williams had acknowledged, in his principal Brief, the “meticulous

nature of the District Court’s inquiry during the plea hearing. . .”. App.Brief at 34;

14

CM/ECF Page 39. However, Mr. Williams argued to the Court below that, at the time

he entered his plea, he did not have, or had not yet understood, all the discovery in

his case. Id. see also, Second Motion to Withdraw Guilty Plea to Count 1 of the

Indictment filed May 7, 2020; RE: 41; Page ID 154. Although the Court below found

that Mr. Williams had not “explain[ed] why he was inclined to alter his plea after

acquiring additional evidence through discovery,” (Opinion Below at 7), Mr. Williams

had indicated in his Second Motion to Withdraw Guilty Plea to Count 1 of the

Indictment that he “believes there are discrepancies relative to Count 1 which should

have been explored but were not.” See, Second Motion to Withdraw Guilty Plea to

Count 1 of the Indictment; RE: 41 at 2; Page ID 155. As such, Mr. Williams submits

that the Sixth Circuit erred on its analysis of this prong and that certiorari should be

granted to reverse and remand these proceedings to the Court below.

Finally, the Court below rejected Mr. Williams’ arguments regarding the lack

of prejudice to the government, finding that it was not required to address the

“prejudice” prong because the other factors weighed against Mr. Williams. Opinion

Below, at 8; quoting, United States v. Spencer, 836 F.2d 236, 240 (6th Cir.

1987)(stating “‘the government is not required to establish prejudice that would

result form a plea withdrawal, unless and until the defendant advances and

establishes a fair and just reason for allowing the withdrawal[.]’”). However, should

this honorable Court find that the Court below erred in its analysis of the other

factors, remand may be appropriate to analyze this factor and weigh it against the

additional factors upon remand.

15

Given the foregoing, Mr. Williams submits that the Sixth Circuit erred in its

analysis of whether Mr. Williams should have been allowed to withdraw his plea. As

such, Mr. Williams respectfully requests that certiorari be granted, that the judgment

of the Sixth Circuit be reversed, and that this matter be remanded for the Court below

for further proceedings, including a new analysis and weighing of the factors.

II.

Certiorari is requested to review the Sixth Circuit’s determination that

“harmless error” governed the disposition of Mr. Williams’ arguments

regarding his §2D1.1 enhancement.

As noted above, the District Court enhanced Mr. Williams’ sentence pursuant

to U.S.S.G. §2D1.1(b)(1), which provides for a two-level increase to the offense level

“if a dangerous weapon (including a firearm) was possessed.” Id. On appeal, Mr.

Williams claimed that the enhancement had been erroneously applied. First, Mr.

Williams claimed that there had been insufficient information presented to

demonstrate that a “firearm” had been possessed by Mr. Williams during a “buy” on

July 17, 2019, that the other definitional requirements for a “firearm” or a

“destructive device” had not been met, and that the “dangerous device” theory had

not been pressed or satisfied in the District Court. See, App.Br. at 39–43; CM/ECF

Page 44–48. Second, Mr. Williams argued that that insufficient evidence had been

presented to connect the gun recovered from his car to relevant conduct alleged in the

Indictment. Id. at 43–48; CM/ECF Page 48–53.

The Sixth Circuit did not rule on the substance of these arguments. Instead,

the Court agreed with the Government and found that any error on this enhancement

would have been harmless. Specifically, the Court stated:

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Our Court has held that any “[e]rrors that do not affect the ultimate

Guidelines range or sentence imposed are harmless and do not require

resentencing.” United States v. Faulkner, 926 F.3d 266, 275 (6th Cir.

2019). Here, when issuing Williams’ sentence, the district court

emphasized that if our Court were to rule that the imposition of the

enhancement constituted error, it would nevertheless sentence Williams

to 150 months’ imprisonment.2 (FOOTNOTE IN ORIGINAL: The

district court also clarified that in such scenario, a sentence at the high

end of the 120-150 month Guidelines range would be appropriate given

Williams’ history of using and possessing handguns, substantial

recidivism, and history of violating the conditions of his release.) Thus,

because any error by the district court would have had no effect on

Williams’ ultimate sentence, we need not determine whether the district

court accurately increased Williams’ offense level pursuant to §

2D1.1(b)(1). See United States v. Morrison, 852 F.3d 488, 491 (6th Cir.

2017) (“If the record shows that the district court would have imposed

its sentence regardless of the Guidelines range, then an error in

calculating the Guidelines range is harmless.”).

See, Opinion Below, at 8-9. Mr. Williams seeks certiorari to review the Sixth Circuit’s

application of “harmless error” to his claims under U.S.S.G. §2D1.1(b)(1).

First, Mr. Williams seeks certiorari for consideration of whether, as a policy

matter, “harmless error” should apply to a circumstance where, as here, a District

Court proactively insulates its sentence from meaningful appellate review by preindicating its intent to fashion a particular sentence regardless of the Guidelines

range. On this item, and as indicated in the Circuit proceedings below, Mr. Williams

recognizes the long history of Sixth Circuit precedent applying harmless error where

“the record shows that the district court would have imposed its sentence regardless

of the Guidelines range.” See, Appellant’s Reply Brief at 8; CM/ECF Page 12; citing,

United States v. Morrison, 852 F.3d 488 (6th Cir. 2017); United States v. Faulkner,

926 F.3d 266, 275 (6th Cir. 2019); United States v. Collins, 800 Fed.Appx. 361, 362

(6th Cir. 2020); and, United States v. Ward, 506 F.3d 468, 476 (6th Cir. 2007). And

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Mr. Williams further recognizes that, although this honorable Court has recently

reconfirmed the importance of the Guidelines to the sentencing process, this

honorable Court has also specifically stated that “the record in a case may show, for

example, that the district court thought the sentence it chose was appropriate

irrespective of the Guidelines range.”

See generally, Molina-Martinez v. United

States, 578 U.S. _____ (2016) at 9-10, 11 (discussing plain error). However, and

despite this precedent, Mr. Williams respectfully suggests that certiorari should be

granted in order to consider whether sound jurisprudential policy supports extending

that rationale to a circumstance where, as here, the District Court proactively

insulates its sentence from meaningful appellate review by pre-indicating its intent

to fashion a particular sentence regardless of the Guidelines range.

Furthermore, even if “harmless error” could generally apply, it is submitted

that the doctrine was not correctly applied to Mr. Williams’ specific proceedings. As

noted in Mr. Williams’ Reply Brief during the proceedings in the Circuit Court below,

the Sixth Circuit recently addressed “harmless error” in United States v. Collins, 800

Fed. Appx. 361 (6th Cir. 2020). In Collins, the District Court had incorrectly applied

a sentencing enhancement, and the panel turned to whether the error was harmless.

Id. at 361-362.

In their discussion, the Court noted that it had “found errors in calculating the

guidelines range to be harmless when a district court made clear that ‘it would have

given [the defendant] the same sentence’ even if it had started from the correct

guidelines range without the calculation error.” Id. at 362 (emphasis added); quoting,

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United States v. Bishop, 797 Fed.Appx. 208, 211-212 (6th Cir. 2019). The Sixth

Circuit echoed its “same sentence” logic both in its detail of Bishop, supra, as well as

in its general description of other cases where guidelines errors were deemed to be

harmless. Id., citing, Morrison, supra, 852 F.3d at 492 & n.2; United States v.

Maxwell, 678 F. App’x 395, 396 (6th Cir. 2017); and United States v. Mizori, 601 F.

App’x 425, 431-32 (6th Cir. 2015). And the Court continued its “same sentence”

analysis in its discussion of United States v. Buchanan, 933 F.3d 501, 516 (6th Cir.

2019), where the court had declined to apply harmless error. Id. (emphasis added).

Applying these principles, the Collins court indicated that “the district court

in this case did not alternatively state that it would have imposed an identical

sentence even if it had rejected the career-offender enhancement.”

Id. at 363

(emphasis in original). As such, the language from Collins suggests that, in order to

substantiate the application of “harmless error,” it must be clear that the sentence

would have been at least the same, if not perhaps identical, without the alleged

sentencing error.

It is submitted that the record below does not satisfy this standard. As noted

in Mr. Williams’ Reply Brief, the District Court stated “. . . I am going to sentence

within the overlapped range.” Tp. Sent. at 47; Page ID 310 (emphasis added). Further,

the Court stated that “the sentence I’m imposing is 150,” which the Court found was

the high end of the lower “range” and “the middle of the 140 to 175 range.” Id.

(emphasis added). The District Court also noted that even if the Court of Appeals

found error with the enhancement, then the sentence imposed would “be in the range

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that would be the range without the enhancement.” Id. (emphasis added). Further,

the Court stated:

I think a sentence at the high end of that range, in the middle of the

actual range I’m using, is appropriate because of your history of using

and possessing handguns, that you have a substantial recidivism

behavior, a history of violating conditions of release, and the fact that

you had that handgun at the time in your vehicle.

All of those support a sentence toward the higher end of the 140 to 175.

But because of your individual circumstances as described by your

attorney, I’m choosing to sentence within the 140 to 175; actually,

toward the bottom, if you want to do the math.

So the sentence will be 150 months.

Id. at 47-48; Page ID 310-311 (emphasis added).

Given the language used by the District Court, it is submitted that its sentence

did not satisfy the standards set forth in Collins, and that harmless error should not

apply to Mr. Williams’ arguments regarding U.S.S.G.§2D1.1(b)(1). Although the

District Court repeatedly noted that it was sentencing Mr. Williams to a term of

months within the overlap of two ranges, the sentencing transcript does not appear

to disclose that the District Court would have imposed an “identical” sentence without

the firearm enhancement. As such, certiorari is requested in order to review and

reverse the Sixth Circuit’s application of harmless error, and to remand these

proceedings for a determination of Mr. Williams’ claims on their merits.

In making this determination, Mr. Williams discloses United States v. Steel,

609 Fed.Appx. 851 (6th Cir. 2015), which itself was noted (and distinguished) in

Collins.

In Steel, the Sixth Circuit had applied harmless error to a sentencing

argument where the record contained statements similar to those made in the

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District Court proceedings herein. Id. at 853-854. Specifically, in Steel, the District

Court had stated “that Steel’s criminal history ‘would keep me at the 188 months

whether I get at it from the low end of the guidelines where I am today or high end

of the guidelines on the defense view. Either way, I think 188 months is a balance of

all the guideline and Section 3553 factors in this case.’” Id. at 853-854. Further, the

Sixth Circuit found the application of harmless error to be particularly appropriate

because the “alternative sentence was within the guideline range” and because Steel

had not otherwise argued that the sentence was unreasonable. Id. at 855.

However, Mr. Williams submits that Steel is distinguishable from his case.

First, Mr. Williams, both below and herein, has otherwise argued that his sentence

is unreasonable. Second, it is submitted that the “identical sentence” language from

Collins appears to clarify Steel, and it appears that the Court in Mr. Williams’ case

was relying more upon the overlapped ranges rather than the specific, identical

sentence. As such, it is submitted that Steel is distinguishable, and that certiorari

should be granted in order to review and reverse the Sixth Circuit’s application of

harmless error, and to remand these proceedings for a determination of Mr. Williams’

claims on their merits. Further, and for all of the reasons set forth in Mr. Williams’

Circuit briefings on the 2D1.1(b)(1) enhancement, it is submitted that the District

Court erred in enhancing Mr. Williams’ sentence, and that this matter should be

further remanded to the District Court after the Sixth Circuit’s consideration of this

issue on the merits. See generally, App. Br. at 36–48 ; CM/ECF Pages 41–53; see also,

App. Reply Br. 5–6; CM/ECF Pages 9–10.

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III.

Certiorari is requested to review the substantive reasonableness of Mr.

Williams’ sentence.

In his proceedings below, Mr. Williams argued that his sentence was

substantively unreasonable. See, App.Br. at 48–50; CM/ECF Pages 53– 55. The Sixth

Circuit has held that “‘[a] sentence is substantively unreasonable if the district court

selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to

consider pertinent 18 U.S.C. § 3553(a) factors, or gives an unreasonable amount of

weight to any pertinent factor.’” See, United States v. Frei, 995 F.3d 561, 567 (6th Cir.

2021); quoting, United States v. Tristan-Madrigal, 601 F.3d 629, 633 (6th Cir. 2010).

The Sixth Circuit has also held that a sentencing review is conducted under the

totality of the circumstances, and that there is a presumption of reasonableness for a

sentence that falls within the Guidelines range. Tristan-Madrigal, supra, 601 F.3d

at 633; quoting, Gall v. United States, 552 U.S. 38, 51 (2007); and, United States v.

Herrera-Zuniga, 571 F.3d 568, 590 (6th Cir. 2009).

Ultimately, however, the panel below found Mr. Williams’ true argument was

“that the district court had “improperly balanced the sentencing factors, which is a

claim that is ‘beyond the scope of our appellate review.’” See, Opinion Below at 10;

quoting, United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006) and, Gall, supra, 552

U.S. at 51. Mr. Williams submits that the Sixth Circuit erred in rejecting his claims

on this basis and Mr. Williams therefore requests that certiorari be granted because

his claims should have been reviewed based on the district court’s failure to give a

reasonable amount of weight to factor 18 U.S.C. §3553(a)(1).

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As noted in the proceedings below, 18 U.S.C. §3553(a)(1) instructs a sentencing

court to review, among other items, “the history and characteristics of the defendant.”

Id. It is submitted that Mr. Williams’ history and characteristics mitigated in favor

of a lesser sentence in the proceedings below, and that the District Court failed to

give this factor a reasonable amount of weight.

As noted in the proceedings below, Mr. Williams faced significant difficulties

in his childhood, including placement in foster care, and a fractured family

relationship after he exited foster care. See, PSIR at 19; Dist. Ct. Page ID: 199. Mr.

Williams’ upbring was also marked by the fact that Mr. Williams’ mother had “dated

various men over the years, who brought drugs and criminal activity into the

household.” Id. Further, Mr. Williams – as early as middle school – had begun to

“hang out with older people on the streets and was exposed to the drug and criminal

culture.” Id.

Mr. Williams also has a significant lack of formalized education. For instance,

he never graduated from high school, and, at the time of sentencing, had never

received his GED and had only a 10th grade education. Id. at 20; Dist. Ct. Page ID:

200. He also had participated in the “Developmentally Handicapped Program” while

in grade school, and “school notations indicate that [he] was developmentally delayed

and received additional services while enrolled in school.” Id. He also has “little

verifiable employment history,” despite his age and his four children of his own. Id.

at 19-20; Dist. Ct. Page ID: 199-200.

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Given the foregoing, and as set forth in the proceedings below, Mr. Williams

submits that his sentence was substantively unreasonable.

Further, the Sixth

Circuit should not have found that Mr. Williams’ arguments were beyond the scope

of appellate review because by failing to give appropriate weight to sentencing factor

3553(a)(1), the district court thereby necessarily also placed unreasonable weight on

other sentencing factors. As such, Mr. Williams requests that certiorari in this matter

be granted, and this case remanded for further proceedings.

CONCLUSION

Wherefore, and for all of the foregoing reasons, Petitioner Williams

respectfully requests that this honorable Court grant certiorari to review the decision

of the United States Court of Appeals for the Sixth Circuit.

Respectfully Submitted,

Blake P. Somers (0078006)

Counsel for Petitioner

BLAKE P. SOMERS llc

114 East 8th Street

Cincinnati, Ohio 45202

513.587.2892

513.621.2525 (fax)

513.702.1448 (cell)

Blake@BlakeSomers.com

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