-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 v. : CRIMINAL NO. 04-475-01

:

THOMAS EARL WILLIAMS

GOVERNMENT'S SENTENCING MEMORANDUM 

The United States of America, by its attorneys, Patrick L. Meehan, United States

Attorney for the Eastern District of Pennsylvania, and Floyd J. Miller, Assistant United States

Attorney for the District, respectfully submits this Sentencing Memorandum regarding defendant

Thomas Earl Williams, who is scheduled to be sentenced on December 19, 2005. For the reasons

provided below, the government recommends a sentence within the guideline range of the

Guideline range of 168 to 210 months. 

I. BACKGROUND

On August 17, 2005 a federal grand jury in the Eastern District of Pennsylvania

returned a ten-count indictment, charging Thomas Earl Williams, James Brown, Deloris Parker,

Janet Street, Charlene, Lavar Parker and James Rivers with conspiracy to make false statements to

a federally licensed firearms dealer, in violation of 18 U.S.C. Section 924(a)(1)(A) (Counts Three

through Seven); providing false information to a federal firearms licensee, in violation of 18

U.S.C. Section 922(A0(6) (Counts Two and Eight); felon in possession of a firearm, in violation

of 18 U.S.C. Section 922(2)(g)(Counts Nine and Ten). A notice of forfeiture was also included for

all of the defendants. A notice of additional factors was also included for Thomas Earl Williams,

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 1 of 12
-2-

James Brown, Charlene Parker and Janet Street. Based upon the change of colloquy for all of the

other defendants, defendant Williams was the ring leader of the conspiracy. 

II. SENTENCING CALCULATION

A. Statutory Maximum Sentence

The maximum sentence that may be imposed on defendant 25 years imprisonment,

a maximum fine of $750,000 and 3 years of supervised release. The

maximum sentence was computed in the following manner:

Count One

Conspiracy to make false statements to a federally licensed firearms dealer (5 

years imprisonment/$250,000 fine (a class D felony)

Counts Two and Eight

Providing false information to a federally firearms licensee (10 years

imprisonment/$250,000 fine) (Class C felonies)

Counts Three through Seven

Making false statements to a federally licensed firearms dealer (10 years

imprisonment/$250,000 fine (Class C felonies

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 2 of 12
-3-

B. Sentencing Guidelines Calculation

Base Offense Level..............................................................................................24

S.O.C. (8 to 24 guns)..............................................................................................4

Role Adjustment....................................................................................................4

Obstruction (lying to federal agent).......................................................................2

Total Offense Level..................................................................................34

Criminal History Category....................................................................................II

Guideline Range....................................................................168 to 210 months

The government urges that the Court impose a sentence within the final guideline 

range.

In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the

United States Sentencing Guidelines, as written, violate the Sixth Amendment principles

articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004). The Court determined that a

mandatory system in which a sentence is increased based on factual findings by a judge violates

the right to trial by jury. As a remedy, the Court severed and excised the statutory provision

making the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), thus declaring the Guidelines

“effectively advisory.” Booker, 125 S. Ct. at 757. This ruling results in a system in which the

sentencing court, while informed by the Guidelines, may impose any sentence within the statutory

maximum penalty for the offense of conviction. The sentence will be subject to review by the

Court of Appeals for “unreasonableness.” Id. at 765.

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 3 of 12
 The courts of appeals have generally stated that the proper sentencing procedure after 1

Booker is for the district court first to calculate the Guidelines sentence and then to consider the

other factors listed in 18 U.S.C. § 3553(a). See, e.g., Crosby, 397 F.3d at 111, 112 (“In order to

fulfill this statutory duty to “consider” the Guidelines, a sentencing judge will normally have to

determine the applicable Guidelines range. * * * . Once an applicable Guidelines range has been

determined, the sentencing judge will have the duty, imposed by subsection 3553(a)(4), to

‘consider’ it, along with all of the factors listed in section 3553(a).”); United States v. Hughes,

396 F.3d 374, 378-79 (4th Cir. 2005) (“Consistent with the remedial scheme set forth in Booker,

a district court shall first calculate (after making the appropriate findings of fact) the range

-4-

In the wake of Booker, this Court must make a correct calculation under the

existing Sentencing Guidelines, and then consider the final guideline calculation when

determining the sentence to be imposed. As is plainly set forth in Booker, the Guidelines sentence

is not to be based solely on facts found by a jury beyond a reasonable doubt. See United States v.

Crosby, 397 F.3d 103, 115 (2d Cir. 2005) (“a sentencing judge would . . . violate section 3553(a)

by limiting consideration of the applicable Guidelines range to the facts found by the jury or

admitted by the defendant, instead of considering the applicable Guidelines range, as required by

subsection 3553(a)(4), based on the facts found by the court.”); see also United States v. Mares,

402 F.3d 511, 519 (5th Cir. 2005) (Booker contemplates that, with the mandatory use of the

Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all

facts relevant to sentencing. The sentencing judge is entitled to find by a preponderance of the

evidence all the facts relevant to the determination of a Guideline sentencing range and all facts

relevant to the determination of a non-Guidelines sentence.”). Justice Breyer’s majority opinion

directed that “[t]he district courts, while not bound to apply the Guidelines, must consult those

Guidelines and take them into account when sentencing.” Id. at 767; see also United States v.

Crosby, 397 F.3d 103, 112 (2d Cir. 2005) (“[t]he applicable Guidelines range is normally to be

determined in the same manner as before Booker/Fanfan.”).1

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 4 of 12
prescribed by the guidelines. Then, the court shall consider that range as well as other relevant

factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the

sentence.”). As noted below, the government submits that the factors in Section 3553(a) have, to

a large extent, been taken into account by the Sentencing Commission in its development of the

Sentencing Guidelines, and that even a separate accounting of these factors should, in all but the

most exceptional case, result in a sentence within the Guidelines range. Cf. Mares, 402 F.3d at

519 (noting that if a sentencing judge exercises discretion to impose a sentence within the

Guidelines range, the appellate court on review “will infer that the judge has considered all the

factors for a fair sentence set forth in the Guidelines” and it will be “rare” for a reviewing court

to say the sentence is unreasonable). 

-5-

The Third Circuit has affirmed the trial court’s authority, following Booker, to

determine the appropriate Guideline range under the preponderance-of-the-evidence standard. In

remanding a case for resentencing, where the original sentence had been applied before Booker

was decided, the Court stated:

We . . . note that the District Court is free to engage in precisely the same exercise in

judicial fact finding as it did in February 2003, so long as such fact finding is consistent

with Booker. Cf. United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005) (“The

error is not that a judge (by a preponderance of the evidence) determined facts under the

Guidelines which increased a sentence beyond that authorized by the jury verdict or an

admission by the defendant; the error is only that the judge did so in a mandatory

Guidelines system.”).

United States v. Miller, 2005 WL 1791999, at *4 (3d Cir. July 29, 2005).

The position of the United States is that, absent highly unusual circumstances, the

sentence in a criminal case should fall within the guideline range as determined by the Court. 

This view is shared by Congress and the Supreme Court. As every Supreme Court justice in the

various opinions in Booker recognized, the Guidelines carry out the express national policy, as

articulated by Congress, that sentences be uniform across the country to the extent possible and be

based on the offender’s actual conduct and history. See, e.g., Booker, 125 S. Ct. at 761 (majority

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 5 of 12
-6-

opinion of Breyer, J.) (“Congress’ basic goal in passing the Sentencing Act was to move the

sentencing system in the direction of increased uniformity.”); id. at 744 (same) (“Congress’ basic

statutory goal of diminishing sentencing disparity depends for its success upon judicial efforts to

determine, and to base punishment upon, the real conduct that underlies the crime of

conviction.”); id. at 783 (dissenting opinion of Stevens, J.) (“The elimination of sentencing

disparity, which Congress determined was chiefly the result of a discretionary sentencing regime,

was unquestionably Congress’ principal aim.”); id. at 789 (dissenting opinion of Scalia, J.) (“the

primary objective of the Act was to reduce sentencing disparity.”).

The Guidelines, aiming to achieve the uniform and appropriate treatment of like

crimes, represent the distillation of nearly 20 years of careful study of sentencing practices across

the country, and correlate as well to the varying severity of crimes as defined by Congress. The

Guidelines, consisting of offense characteristics and various grounds for departure, address all of

the considerations relevant to sentencing, as articulated in 18 U.S.C. § 3553(a), such as “the

nature and circumstances of the offense and the history and characteristics of the defendant;” “the

need for the sentence imposed -- (A) to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to

criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to

provide the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner;” and “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar conduct .

. . .”

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 6 of 12
-7-

Thus, fidelity to the Guidelines best accomplishes the purpose of fair and

consistent sentencing, and should occur absent unusual circumstances. Since Booker, the courts

of appeals have emphasized the continued importance of the Sentencing Guidelines. As the

Second Circuit Court of Appeals explained in United States v. Crosby, “These principles change

the Guidelines from being mandatory to being advisory, but it is important to bear in mind that

Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to

be consulted or overlooked at the whim of a sentencing judge. Thus, it would be a mistake to

think that, after Booker/Fanfan, district judges may return to the sentencing regime that existed

before 1987 and exercise unfettered discretion to select any sentence within the applicable

statutory maximum and minimum.” Crosby, 397 F.3d at 113. The Court of Appeals for the Fifth

Circuit also noted in Mares, “Even in the discretionary sentencing system established by

Booker/Fanfan, a sentencing court must still carefully consider the detailed statutory scheme

created by the [Sentencing Reform Act] and the Guidelines, which are designed to guide the judge

toward a fair sentence while avoiding serious sentence disparity.” 402 F.3d at 518-19. See also

United States v. Paladino, 401 F.3d 471, 480 (7th Cir. 2005) (“Under the new sentencing regime

the judge must justify departing from the guidelines, and the justification has to be reasonable.”).

A recent decision of the Seventh Circuit in defining the new sentencing regime is

instructive. That court stated:

The Sentencing Guidelines represent at this point eighteen years’ worth of careful

consideration of the proper sentence for federal offenses. When the Supreme Court

directed the federal courts to continue using the Guidelines as a source of advice for proper

sentences, it expected that many (perhaps most) sentences would continue to reflect the

results obtained through an application of the Guidelines. But “many or most” sentences

cannot mean “all” sentences. Put differently, Booker does not hold that a Guidelines

sentence must conclusively be presumed to be reasonable. . . . 

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 7 of 12
-8-

But while a per se or conclusively presumed reasonableness test would undo the Supreme

Court’s merits analysis in Booker, a clean slate that ignores the proper Guidelines range

would be inconsistent with the remedial opinion. As Booker held, “the district courts,

while not bound to apply the Guidelines, must consult those Guidelines and take them into

account when sentencing.” Booker, 125 S.Ct. at 767. The Guidelines remain an essential

tool in creating a fair and uniform sentencing regime across the country. “The Sentencing

Commission will continue to collect and study [district court] and appellate court

decisionmaking. It will continue to modify its Guidelines in light of what it learns, thereby

encouraging what it finds to be better sentencing practices.” Id. at 766. The best way to

express the new balance, in our view, is to acknowledge that any sentence that is properly

calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness. .

. .

The defendant can rebut this presumption only by demonstrating that his or her sentence is

unreasonable when measured against the factors set forth in § 3553(a). 

United States v. Mykytiuk, 2005 WL 1592956, at *1-2 (7th Cir. July 7, 2005).

The government also commends to the Court’s attention the scholarly opinion in

United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah 2005), which agreed that, absent unusual

circumstances, a sentence should be imposed within the Sentencing Guidelines range. In his

assessment in Wilson, on the day after Booker was decided, Judge Cassell explained at length the

reasons supporting this view. As he stated, the Guidelines represent the product of an expert

commission, which has studied the sentencing process at great length, under the specific mandate

of Congress to fashion recommended sentences which carry out the purposes defined by

Congress. The resulting Guidelines, Wilson held, plainly reflect the public’s will, as expressed by

their democratically elected representatives, in that Congress has repeatedly approved of the

Guidelines or acted to adjust them to Congressional preference. Wilson further observed that

guided sentencing appears to have had a positive impact in deterring criminal conduct throughout

the country, and thus serves the purpose of deterrence as well as punishment and fairness. For all

of these reasons, Judge Cassell determined that “the court will give heavy weight to the

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 8 of 12
 In United States v. Ranum, 353 F. Supp. 2d 984 (E.D. Wis. 2005), Judge Adelman 2

rejected Judge Cassell’s approach, claiming that it is “inconsistent” with the holdings in Booker. 

The government respectfully disagrees with Judge Adelman’s approach. As Judge Cassell noted

in a subsequent opinion in United States v. Wilson, 355 F. Supp. 2d 1269 (D. Utah 2005), the

Ranum approach ignores the “carefully calibrated” work of the Commission in determining

which offender characteristics determine a sentence. Id. at 1275. Moreover, Ranum gives

insufficient consideration to the importance of consistent sentencing and avoiding sentencing

disparities. As Judge Cassell recognized, “only close adherence to the Guidelines offers any

prospect of treating similarly-situated offenders equally,” and thus assuring fidelity to the

manifest Congressional purpose. Id. Moreover, the opinion of the Wisconsin court appears

inconsistent with later decisions of its governing Court of Appeals, the Seventh Circuit, as noted

above.

-9-

Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will

only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons.”

Id. at 912.2

The United States submits that a sentence within the guideline range is

presumptively reasonable, and accommodates the Congressional purpose, affirmed by the

Supreme Court, of obtaining fair sentences which are uniform to the extent possible. As the Fifth

Circuit stated in Mares,

If the sentencing judge exercises her discretion to impose a sentence within a properly

calculated Guideline range, in our reasonableness review we will infer that the judge has

considered all the factors for a fair sentence set forth in the Guidelines. Given the

deference due the sentencing judge’s discretion under the Booker/Fanfan regime, it will be

rare for a reviewing court to say such a sentence is “unreasonable.”

402 F.3d at 519. The government anticipates that only sentences outside the guideline range will

be subject to appellate scrutiny for reasonableness in light of the Congressional mandate. Cf. id.

(noting that “[w]hen the judge exercises her discretion to impose a sentence within the Guideline

range and states for the record that she is doing so, little explanation is required,” but when the

judge gives a non-Guideline sentence, “she should carefully articulate the reasons she concludes

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 9 of 12
-10-

that the sentence she has selected is appropriate for that defendant” because “[s]uch reasons are

essential to permit this court to review the sentence for reasonableness as directed by Booker.”).

In this case, as explained further below, no unusual circumstances exist which

warrant an exception to the preference for guideline sentencing. Therefore, the government

respectfully recommends that the Court sentence the defendant within the Guidelines range

calculated in the PSR.

III. GOVERNMENT’S RECOMMENDATION

As set forth in the PSR, with an offense level of 34 and a criminal history category

of II, defendant falls within the sentencing range of 168 to 210 months. The government

respectfully recommends that the Court impose a period of incarceration within this Guidelines

range. Such a sentence would recognize [the seriousness of defendant’s offense conduct, the

defendant’s criminal recidivism, and his history of probation and parole violations.

Defendant Williams was the mastermind of the conspiracy at issue in this case.

Some of the guns which he caused his coconspirators to purchase, more than likely, ended up in

the possession of criminals. Indeed, it is possible that some of the guns may have been used to

commit murders in Philadelphia and the surrounding metropolitan area. 

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 10 of 12
For all of the above reasons, the government respectfully recommends that the

Court impose a period of incarceration within the Guidelines range established by the PSR. 

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney

______________________________

FLOYD J. MILLER

Assistant United States Attorney

Date: December 19, 2005.

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 11 of 12
-12-

CERTIFICATE OF SERVICE

I hereby certify that on this date a true and correct copy of the Government’s Sentencing 

Memorandum was served on counsel for the defendant by fax to:

Howard D. Popper, Esquire

Popper & Yatvin

230 South Broad Street

Suite 503

Philadelphia, PA 19102

________________________

FLOYD J. MILLER

DATED______________ 

Case 2:04-cr-00475-AB Document 134 Filed 12/19/05 Page 12 of 12