1 United States v. Booker, 543 U.S. 220 (2005).

REVISED February 20, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30010

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

GEORGE W. WILLIAMS,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

George W. Williams was originally sentenced prior to the issuance of

United States v. Booker,

1 under a mandatory Sentencing Guidelines regime. In

a prior appeal, this court held that certain factors did not justify an upward

departure from the mandatory Guidelines range. On remand, after Booker was

decided, the district court imposed a non-Guidelines sentence greater than the

advisory Guidelines range. We hold that the district court did not violate the

United States Court of Appeals

Fifth Circuit

F I L E D

February 18, 2008

Charles R. Fulbruge III

Clerk
No. 06-30010

2 United States v. Williams, 101 F. App’x 435, 436 (5th Cir. 2004).

3 See U.S.S.G. § 2S1.1(a)(1) (1998).

4 See id. § 3D1.2 (1998).

5 See id. § 3C1.1 (1998).

6 See id. § 5K2.0 (1998).

7 See Williams, 101 F. App’x at 437-38.

8 See id. at 438-39.

2

law of the case in imposing the sentence and that the sentence was not

unreasonable. We therefore affirm.

I

George W. Williams was convicted of federal conspiracy, fraud, money

laundering, and criminal forfeiture. The facts underlying these convictions were

described by this court in United States v. Williams.

2 The district court

sentenced Williams to 172 months of imprisonment under the then-mandatory

Guidelines. The district court grouped Williams’s offenses, and applied the baseoffense level of the money laundering guideline,3

on the ground that it was the

highest among the grouped offenses.4 The district court enhanced this level by

two based on its finding that Williams had obstructed justice by perjuring

himself attrial,5 and upwardly departed from the guidelines by four levels based

on its finding that the money laundering scheme was complex and involved a

large number of victims.6

Williams appealed the sentence, claiming that both the enhancement and

the upward departure were in error. This court held there was no error in the

enhancement based on obstruction of justice7 but held that the district court did

err in its upward departure based on complexity and number of victims.8 The

court reasoned that the scheme was not exceptional in its complexity nor in the
No. 06-30010

9 U.S.S.G. § 5K2.0 (1998).

10 See Williams, 101 F. App’x at 438-39 (citing United States v. Hemmingson, 157 F.3d

347, 363 (5th Cir. 1998) and United States v. Tansley, 986 F.2d 880 (5th Cir. 1993)).

11 543 U.S. 220 (2005).

12 Id. at 244.

13 Id. at 245-46.

14 Id.

3

number of victims within the meaning of § 5K2.0,9 as the district court had

found.10 This court therefore vacated the sentence and remanded to the district

court in June, 2004.

In January, 2005, the Supreme Court decided United States v. Booker,

11

holding both that “[a]ny fact (other than a prior conviction) which is necessary

to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt,”12 and that the

guidelines must be non-mandatory in order to comply with the Sixth

Amendment.13

In December, 2005, the district court held a re-sentencing hearing. The

district court apparently believed that the enhancement based on obstruction of

justice was invalid under Booker,

14 since the fact of perjury had not been found

by a jury nor admitted by Williams. Without the obstruction of justice

enhancement and the upward departure for complexity and number of victims,

the advisory guideline sentencing range was 78 to 97 months. Citing the

sentencing factors stated in 18 U.S.C. § 3553(a) and the specific circumstances

of Williams’s case, the court imposed a non-Guidelines sentence and again

sentenced Williams to 172 months of imprisonment.
No. 06-30010

15 United States v. Pineiro, 470 F.3d 200, 204 (5th Cir. 2006).

16 United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (quoting Tollett v. City

of Kemah, 285 F.3d 357, 363 (5th Cir. 2002)).

17 United States v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998) (quoting N. Miss.

Commc’ns, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir. 1992)), abrogated on other grounds by

Booker, 543 U.S. 220, as recognized by United States v. Farias, 481 F.3d 289 (5th Cir. 2007).

18 See Becerra, 155 F.3d at 753.

4

Williams has appealed. He claims (1) that the sentence violates the law

of the case established by this court in the first appeal, because the district

court’s stated factors for ordering 172 months of imprisonment were many ofthe

same factors that this court held did not justify a four-level upward departure

under the Sentencing Guidelines in the initial sentencing; and (2) that the

172-month sentence is unreasonable.

II

We review a district court’s interpretation of our remand order de novo,

including whether the law ofthe case forecloses any ofthe district court’s actions

on remand.15 The law of the case doctrine contemplates that “an issue of fact or

law decided on appeal may not be reexamined either by the district court on

remand or by the appellate court on a subsequent appeal.”16 “The law of the case

doctrine, however, is not inviolate. We have explained that ‘a prior decision of

this court will be followed without re-examination . . . unless (i) the evidence on

a subsequenttrial was substantially different, (ii) controlling authority has since

made a contrary decision of the law applicable to such issues, or (iii) the decision

was clearly erroneous and would work a manifest injustice.’”17 If it appears that

this court’s holding has not been followed in subsequent proceedings, we may

nevertheless affirm the district court if one of the exceptions applies.18
No. 06-30010

19 101 F. App’x at 439 (emphasis added).

20 Id. at 438-39.

21 See Booker, 543 U.S. at 245.

22 See United States v. Bad Marriage, 439 F.3d 534, 538 (9th Cir. 2006) (“If [the earlier

opinion in this case] is read to establish the law of the case under a mandatory Sentencing

Guidelines regime, Booker, which leaves Guidelines as advisory only,is intervening controlling

authority displacing prior law of case.”).

5

In the prior appeal we held that the district court “erred by departing

upward from the sentencing guidelines pursuant to § 5K2.0.”19 We concluded

that the facts of Williams’s case did not reveal an exceptional degree of

complexity or number of victims, that the Sentencing Guidelines already took

complexity and number of victims into account, and therefore that the

Guidelines themselves did not allow an upward departure on those grounds.20

Our earlier holding was an interpretation of the mandatory Sentencing

Guidelines, and a non-Guidelines sentence could not be imposed at that time. 

The Supreme Court’s decision in Booker was intervening law that created

one of the recognized exceptions to the law ofthe case doctrine. Booker rendered

the Guidelines sentencing range advisory only.21 This was a dramatic shift in

sentencing law and permitted the district court to consider complexity and

number of victims in selecting a sentence, even though we had ruled that those

factors were improperly considered in upwardly departing pursuant to section

5K2.0 of the then-mandatory regime. The Booker decision was intervening

controlling law that created an exception to the law of the case doctrine.22

III

Williams argues that his sentence is unreasonable, contending that his

money laundering offenses are “run of the mill” and within the “heartland of

money laundering offenses.” He further asserts that the amount of loss is the

relevant measure of harm, notthe number of victims or complexity ofthe scheme
No. 06-30010

23 Gall v. United States, 128 S. Ct. 586, 591 (2007).

24 Id. at 597.

25 Id.

26 Id.

6

because, he contends,the number of victims and the sophistication ofthe scheme

is subsumed in the loss tables. The Guidelines range should be applied, he

argues, absent extraordinary circumstances peculiar to the particular defendant.

He asserts that his 172-month sentence (fourteen years and four months) is a

77% increase over the maximum guideline sentence calculated by the district

court, which was 97 months (eight years and one month). A sentence of eight

years and one month would more than satisfy the sentencing goals in 18 U.S.C.

§ 3553, he contends.

A

The Supreme Court has recently provided additional guidance in

determining whether a sentence is reasonable.23 The Court reconfirmed that

“[r]egardless of whether the sentence imposed is inside or outside the Guidelines

range,the appellate court must review the sentence under an abuse-of-discretion

standard.”24 In performing that review, we are to “first ensure that the district

court committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range . . . .”25

Although Williams asserts that the district court properly calculated the

Guidelines range,the Government contends otherwise, arguing that the district

court should have applied a two-level enhancementfor perjury. We will consider

the Government’s contention since in reviewing the reasonableness of a

sentence, we are to “take into account the totality of the circumstances, including

the extent of any variance from the Guidelines range.”26 The Government has
No. 06-30010

27 U.S.S.G. § 3C1.1 (1998).

28 United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006).

29 18 U.S.C. § 3742(f)(1).

30 Williams v. United States, 503 U.S. 193, 203 (1992).

31 Gall, 128 S. Ct. at 597.

7

not cross-appealed and requested that we remand, so we do not consider whether

a remand would be required if it had done so.

The district court found in its initial sentencing that Williams had

committed perjury during his trial and imposed an obstruction enhancement

under § 3C1.1.27 We affirmed that enhancement in the first appeal. At the

sentencing hearing on remand,the district court reconfirmed its conclusion that

Williams committed perjury during his trial, but the district court did not apply

an enhancement because Williams “was not charged with nor convicted of

perjury.” However, in order for the enhancement to apply, the fact of perjury

need not be tried to a jury and may instead be found by the sentencing judge by

a preponderance ofthe evidence.28 The calculation of the Guidelines range at resentencing should have included a two-level enhancement for obstruction of

justice, and the correct advisory sentencing range was 97 to 121 months. This

error does not entitle Williams to any relief because his sentence was not

“imposed as a result of an incorrect application of the sentencing guidelines”29

since the properly calculated range was higher than that applied by the district

court. Nor can it be said that Williams’s sentence “would have been different but

for the district court’s error”30 in calculating the applicable Guideline’s range.

There is no contention that the district court “select[ed] a sentence based

on clearly erroneous facts, or fail[ed] to adequately explain the chosen

sentence . . . .”31 Accordingly, we turn our consideration to “the substantive
No. 06-30010

32 Id.

33 Id.

34 Id.

35 United States v. Booker, 543 U.S. 220 (2005).

36 128 S. Ct. 586 (2007).

37 128 S. Ct. 558 (2007).

8

reasonableness of the sentence imposed under an abuse-of-discretion

standard.”32

B

When, as here, a sentence is outside the Guidelines range, we “may

consider the extent of the deviation, but must give due deference to the district

court’s decision thatthe § 3553(a) factors, on [the] whole, justify the extent ofthe

variance.”33 We apply the familiar deferential standard: “The fact that the

appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.”34

The district court considered a number of factors in selecting a sentence

of 172 months, including the number of victims who were individuals, the harm

to and disruption of the lives of those victims, the fact that the fraud and money

laundering occurred across 26 states, and the complexity of the scheme. Among

Williams’s chief complaints is his contention that the Guidelines adequately

accounted for these factors and therefore his sentence in excess ofthe Guidelines

range is unreasonable. 

The Supreme Court’s decision in Booker35 implicitly rejected the position

that no additional weight could be given to factors included in calculating the

applicable advisory Guidelines range, since to do otherwise would essentially

render the Guidelines mandatory. In Gall36 and Kimbrough v. United States37

the Supreme Court has more explicitly set forth the permissible considerations
No. 06-30010

38 Gall, 128 S. Ct. at 596-97.

39 Id. at 597.

40 Kimbrough, 128 S. Ct. at 564 (quoting 18 U.S.C. § 3553(a)).

41 127 S. Ct. 2456 (2007).

42 Kimbrough, 128 S. Ct. at 570 (alteration in original) (citing Rita,127 S. Ct. at 2465

for the proposition that “a district court may consider arguments that ‘the Guidelines sentence

itself fails properly to reflect § 3553(a) considerations.’”).

43 Gall, 128 S. Ct. at 592-93.

9

in imposing a sentence, whether within or without an applicable Guidelines

range. The Court explained in Gall that in selecting a sentence, the district

court “may not presume that the Guidelines range is reasonable.”38 The court

“must make an individualized assessment based on the facts presented.”39 This

necessarily means that the sentencing court is free to conclude that the

applicable Guidelines range gives too much or too little weight to one or more

factors, either as applied in a particular case or as a matter of policy. The

Supreme Court confirmed in Kimbrough that while “[a] district judge must

include the Guidelines range in the array of factors warranting consideration,”

the sentencing “judge may determine, however, that, in the particular case, a

within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of

sentencing.”40 Obviously, the sentencing court may also conclude in a particular

case that a sentence within the Guidelines range is not lengthy enough to serve

the objectives of sentencing. 

The Supreme Court reiterated in Kimbrough whatit had conveyed in Rita

v. United States,

41 which is that “as a general matter, ‘courts may vary [from

Guidelines ranges] based solely on policy considerations, including

disagreements with the Guidelines.’”42 In Gall the Court held that a sentence

imposing only probation was reasonable even though the applicable Guidelines

range was 30 to 37 months of imprisonment,43 and the Guidelines did not
No. 06-30010

44 Id. at 601-02 n.11 (“Specifically, probation is not recommended under the Guidelines

when the applicable Guidelines range is outside Zone A of the sentencing table as it is here.

USSG § 5B1.1.”).

45 Id.. at 601-02.

46 Id. at 602.

47 Id. (“[T]he Guidelines are only one of the factors to consider when imposing

sentence . . . .); Kimbrough, 128 S. Ct. at 564 (“[T]he Guidelines, formerly mandatory, now

serve as one factor among several courts must consider in determining an appropriate

sentence.”).

48 Gall, 128 S. Ct. at 596; see also Kimbrough, 128 S. Ct. at 574 (“[D]istrict courts must

treat the Guidelines as the ‘starting point and the initial benchmark.’”) (quoting Gall).

49 Kimbrough, 128 S. Ct. at 574 (quoting Rita, 127 S. Ct. at 2465).

50 Gall, 128 S. Ct. at 596 (“[T]he district judge should then consider all of the § 3553(a)

factors to determinewhether they supportthe sentence requested by a party.”); id. at 597 (“[An

appellate court] may consider the extent of the deviation, but must give due deference to the

district court’s decision that the § 3553(a) factors, on [the] whole, justify the extent of the

10

recommend probation when such a range applied.44 Accordingly, even though

the Guidelines “state[d] that probation alone [was] not an appropriate sentence

for comparable offenses,” the Supreme Court admonished that “the Guidelines

are not mandatory, and thus the ‘range of choice dictated by the facts of the case’

is significantly broadened.”45 The Supreme Court reminded us that “the

Guidelines are only one of the factors to consider when imposing sentence,” and

that even in a case in which only probation was imposed in direct contradiction

of the Guidelines’s policy, “§ 3553(a)(3) directs the judge to consider sentences

other than imprisonment.”46

Both Gall and Kimbrough emphasized that the Guidelines range is but one

factor for a sentencing judge to consider.47 The Guideline range is “the starting

point and the initial benchmark.”48“[I]n the ordinary case, the Commission’s

recommendation of a sentencing range will ‘reflect a rough approximation of

sentences that might achieve § 3553(a)’s objectives.’”49 But that range is not

mandatory. The § 3553(a) factors must be considered.50“The sentencing
No. 06-30010

variance.”).

51 Kimbrough, 128 S. Ct. at 574 (quoting Rita, 127 S. Ct. at 2469 and Gall, 128 S. Ct.

at 586).

52 Kimbrough, 128 S. Ct. at 574-75 (quoting Rita, 127 S. Ct. at 2465).

53 Id. at 575 (quoting Rita, 128 S. Ct. at 2465).

54 See U.S.S.G. §§ 2S1.1, 2B1.1 (2005).

11

judge . . . has ‘greater familiarity with . . . the individual case and the individual

defendant before him than the Commission or the appeals court.’ He is therefore

‘in a superior position to find facts and judge their import under § 3553(a)’ in

each particular case.”51 The Supreme Court further counseled, “[i]n light of

these discrete institutional strengths, a district court’s decision to vary from the

advisory Guidelines may attract greatest respect when the sentencing judge

finds a particular case ‘outside the “heartland”to which the Commission intends

individual Guidelines to apply.’”52 “On the other hand, while the Guidelines are

no longer binding, closer review may be in order when the sentencing judge

varies from the Guidelines based solely on the judge’s view that the Guidelines

range ‘fails properly to reflect § 3553(a) considerations’ even in a mine-run

case.”53

In selecting a sentence for Williams, the district court was not prohibited

from considering the number of victims, the harm to individuals, the expansive

reach of the crimes, or the complexity ofthe scheme, even though the Guidelines

sentencing range for money laundering54 may implicitly have taken complexity

of the scheme and the number of victims into account by basing the term of

imprisonment on the amount of loss. We find no merit in Williams’s arguments

that these factors could not support a sentence outside the guidelines, although

we recognize that some of our pre-Rita, pre-Gall and pre-Kimbrough decisions
No. 06-30010

55 See, e.g., United States v. Walters, 490 F.3d 371, 374 (5th Cir. 2007) (invalidating an

above-Guidelines sentence because the district court relied upon factors already incorporated

by the Guidelines); United States v. Perrin, 478 F.3d 672, 678 (5th Cir. 2007) (invalidating a

below-Guidelines sentence in part because the district court relied upon factors already

incorporated by the Guidelines); cf. United States v. Sanchez-Ramirez, 497 F.3d 531, 535-36

(5th Cir. 2007) (affirming the district court’s decision to impose an above-Guidelines sentence

because the circumstances were egregious compared to normal cases of the same type).

56 Gall, 128 S. Ct. at 595 (“We reject, however, an appellate rule that requires

‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.”).

57 Id.

58 Id.

12

indicate otherwise.55 All of the factors about which Williams complains are

permissible factors for consideration under 18 U.S.C. § 3553(a) in determining

whether a sentence inside or outside the Guidelines would be appropriate.

Williams contends there must be extraordinary circumstances to justify

a sentence 77% higher than 97 months, which was the top of the Guidelines

advisory range found applicable by the district court. (We note that Williams’s

172-month sentence is 42% greater than 121 months, the top of the properly

calculated Guidelines range.)

Williams’s argument that district courts may depart from the Guidelines

only in “extraordinary circumstances peculiar to the particular defendant before

the sentencing court”is directly foreclosed by Gall.

56 We may not require district

courts to find “extraordinary” circumstances before they impose sentences

outside ofthe guidelines range.57 Nor may we use a “rigid mathematical formula

that uses the percentage of a departure [from the Guidelines range] as the

standard for determining the strength ofthe justifications required for a specific

sentence.”58 Appellate systems of “‘proportional review’” that “apply[] a

heightened standard of review to sentences outside the Guidelines range” are

inconsistent with the abuse-of-discretion standard that must be applied to all
No. 06-30010

59 Gall, 128 S. Ct. at 596.

60 Id. at 595-96 (The Supreme Court stressed, “[m]ost importantly, both the exceptional

circumstances requirement and the rigid mathematical formulation reflect a practice—common

among courts that have adopted ‘proportional review’—of applying a heightened standard of

review to sentences outside the Guidelines range. This is inconsistent with the rule that the

abuse-of-discretion standard of review applies to appellate review of all sentencing

decision—whether inside or outside the Guidelines range.”).

61 Id. at 594-95.

13

sentences, “whether inside or outside the Guidelines range.”59 To require

“extraordinary circumstances” or to give “proportional review” would “come[]too

close to creating an impermissible presumption of unreasonableness” for nonGuidelines sentences.60

We may, however, “take the degree of variance into account and consider

the extent of a deviation from the Guidelines.”61 The Guidelines range

applicable to Williams is 97 to 121 months, which is a range between eight years,

one month and ten years, one month. The 172-month sentence is fourteen years,

four months, which is four years, three months longer than the top of the

Guidelines range, and six years, three months longer than the bottom of the

Guidelines range.

In imposing a 172-month sentence the district court enumerated each of

the factors set forth in 18 U.S.C. § 3553(a) and considered their application to

Williams’s case. The court found that his offense “was horrendous and wrecked

many people’s lives,” that Williams “[b]asically . . . stole money from

individuals.” The district court considered the need for the sentence “to reflect

the seriousness of the offense, to promote respect for the law and to provide just

punishment for the offense” to be an “extremely important” factor. The court

sought “to deter other people from scamming not one community but several

communities throughout 26 states.” The court further found “[t]his particular

defendant has shown no remorse and really doesn’t care that he wrecked the
No. 06-30010

62 See 18 U.S.C. § 1956(h).

63 See id. § 1956(a)(1).

64 See id. §§ 371, 1341-43.

65 See id. § 1957(a).

14

lives of many people by defrauding them of some of their savings.” The court

found no need for educational or vocational training, medical care, or other

corrective treatment. The district court also said,

Based on allthe factors of this case, the tremendous problems

that it caused to the individuals, all the testimony that was

presented in court, the fraud and the complexity of the fraud, the

number of states and the number of individuals, and where these

people were sought to in fact contribute to this scheme unwittingly.

The only one who knew that this was a scheme were the ones

putting this scheme together, and the lead person in that entire

scheme was Mr. Williams.

The district court sentenced Williams as follows:

Count 29 172 months

Counts 1 to 28 60 months

Counts 30 to 47 172 months

Counts 53 to 55 120 months

These sentences are to be served concurrently. The district court also ordered

restitution in the amount of $2,995,645.20, and three years of supervised release

for each count, to run concurrently.

We note that the 172-month sentence is below a statutory maximum

sentence of 20 years, which was authorized for Count 2962 as well as for each of

Counts 30 to 47.63 The maximum statutory penalty for each of the offenses

enumerated in Counts 1 to 28 was five years,64 and for each offense enumerated

in Counts 53 to 55, the maximum penalty was ten years.65
No. 06-30010

66 Gall, 128 S. Ct. at 597-98; Kimbrough, 128 S. Ct. at 574-75.

67 See Gall, 128 S. Ct. at 597.

68 Id. at 597-98.

69 See Kimbrough, 128 S. Ct. at 576 (“The ultimate question . . . is ‘whether the sentence

was reasonable—i.e., whether the District Judge abused his discretion in determining that the

§ 3553(a) factors supported a sentence of [15 years] and justified a substantial deviation from

the Guidelines range.’”) (quoting Gall, 128 S.Ct. at 600).

15

For the reasons explained in Gall and Kimbrough, we give considerable

deference to the district court’s imposition of the 172-month sentence.66 The

district court saw and heard the evidence, made credibility determinations, had

full knowledge of the facts, and gained insights not conveyed by the record.67

The district court had access to Williams and had “‘greater familiarity with’”this

case and Williams “than the Commission or” this court.68 While we may not

have imposed the same sentence, that is not the test. The district court

considered the factors in 18 U.S.C. § 3553(a) and articulated the reasons for

arriving at the sentence. In light of the record and the district court’s findings,

we cannot say that the district court abused its discretion in concluding that a

172-month sentence was reasonably necessary to achieve the objectives of 18

U.S.C. § 3553(a).69

* * *

We AFFIRM the sentence imposed by the district court.