Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60274

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

KEVIN DEWAYNE WILLIAMS

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Mississippi

No. 07-CR-7-1

Before JONES, Chief Judge, and KING and ELROD, Circuit Judges.

PER CURIAM:*

Defendant-appellant Kevin Williams pleaded guilty to attempting to

commit extortion affecting interstate commerce in violation of 18 U.S.C.

§ 1951(a) and was sentenced to 120 months of imprisonment. He appeals his

sentence on both procedural and substantive grounds. First, he argues that the

district court misapplied a cross reference in the relevant sentencing guideline,

resulting in an inflated guidelines range. Second, he argues that the sentence

was unreasonable in light of his post-offense military service, which he claims

United States Court of Appeals

Fifth Circuit

F I L E D

June 4, 2009

Charles R. Fulbruge III

Clerk
 Chief Judge Jones agrees that this sentence must be affirmed under applicable law, 1

but she strongly believes that the government miscarried justice by insisting that this

defendant be sentenced in this case on the basis of contrived amounts of non-existent cocaine.

In her view, nothing in the defendant’s past record suggests that the goals of rehabilitation

or deterrence required a 10-year sentence of imprisonment; he abandoned his misdeeds

voluntarily; he served this country without blemish in wartime.

 The phrase “determined above” refers to § 2C1.1(a)(1). Under this section, Williams’s 2

adjusted offense level would have been 22.

2

evidences his rehabilitation. For the reasons stated below, we affirm the

sentence.1

I. FACTUAL AND PROCEDURAL BACKGROUND

Williams’s indictment alleged that in 2003, while a police officer in

Vicksburg, Mississippi, he agreed on two occasions to escort a shipment of

cocaine as it passed through the county in exchange for cash payments from an

undercover agent. Williams believed that the first shipment contained five

kilograms and that the second shipment contained ten kilograms. Although the

undercover agent continued to contact him regarding further shipments over the

next year, Williams ceased participating. 

At the March 18, 2008 sentencing hearing, the district court concluded,

over Williams’s objection, that the cross reference in U.S.S.G. § 2C1.1(c)(1)

applied. Section 2C1.1(c)(1) provides:

If the offense was committed for the purpose of facilitating the

commission of another criminal offense, apply the offense guideline

applicable to a conspiracy to commit that other offense, if the

resulting offense level is greater than that determined above. 

2

The district court then looked to § 2D1.1, which applies to conspiracy to

commit drug trafficking. The quantity table at § 2D1.1(c) sets a base offense

level of 34 for “at least 15 KG but less than 50 KG of Cocaine.” The district court

added two levels for possession of a dangerous weapon pursuant to § 2D1.1(b)(1)

and two levels for abuse of a position of trust pursuant to § 3B1.3; there was also

a two-level decrease for acceptance of responsibility pursuant to § 3E1.1(a).
 Rule 35(a) of the Federal Rules of Criminal Procedures states that “[w]ithin 7 days 3

after sentencing, the court may correct a sentence that resulted from arithmetical, technical,

or other clear error.” The district court resentenced Williams within the seven-day period.

We do not consider if the reasons proffered by the district court satisfy the “arithmetical,

technical or other clear error” requirement, see, e.g., United States v. Ross, 557 F.3d 237, 243

(5th Cir. 2009) (“Any subsequent misgivings about the leniency or severity of the sentence do

not constitute the type of error that is contemplated by Rule 35(a)”), because the government

did not object at the time of resentencing and did not file a cross-appeal, see Greenlaw v.

United States, 128 S. Ct. 2559 (2008) (holding that absent a government appeal or cross

appeal, an appellate court may not sua sponte increase a district court’s sentence to correct a

plain error). Therefore, we assume without deciding that the district court’s reconsideration

of Williams’s sentence was appropriate under Rule 35(a). 

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Thus, Williams’s adjusted level of 36 and criminal history category of I resulted

in a guidelines range of 188 to 235 months. The district court then sentenced

Williams to a term of 188 months of imprisonment and three years of supervised

release. 

On March 24, 2008, the district court entered an order resentencing

Williams to only 120 months of imprisonment and three years of supervised

release pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. The 3

district court stated that its previous conclusion that there were insufficient

grounds for a departure below the guidelines range was incorrect in light of its

careful reconsideration of all the § 3553(a) factors and, specifically, its review of

the documents related to Williams’s Army career that were belatedly provided

to it by defense counsel on the morning of the sentencing hearing. These

documents established that Williams, who had previously served in the Army

from 1989 to 1991, left the police department after his offense and rejoined the

Army in early 2005. He performed admirably in the Army and was promoted to

sergeant prior to his arrest in 2007. The documents included a letter of

commendation from Williams’s superior officer and various positive performance

evaluations. The district court concluded that it was “now of the opinion that the

defendant’s service to his country before the indictment should be considered as

a mitigating factor and that his service after the criminal conduct should also be
 Williams also argued that the cross reference should not apply because there were 4

never any actual drugs in the vehicles he escorted. Assuming he challenges the quantity of

drugs involved as being arbitrarily determined by the government, we conclude that this

argument has no merit. See United States v. Richardson, 925 F.2d 112, 117–18 (5th Cir. 1991)

(holding that there was no separation of powers problem in allowing the government to dictate

the amount of money involved in an undercover laundering sting and that there was no due

process violation because the defendant “freely decided to accept the negotiated amount”); see

also United States v. Burke, 431 F.3d 883, 887 (5th Cir. 2005) (“[I]n convictions based on

reverse-sting operations such as this one, where the actual quantity of drugs is controlled by

the government instead of by the defendant, the quantity of drugs agreed upon more

accurately reflects the scale of the offense than the quantity actually delivered.” (citing

U.S.S.G. § 2D1.1, cmt., n. 12)).

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considered, as well.” Despite this downward departure, Williams appeals his

sentence. 

II. DISCUSSION

A. Standards of Review

Williams makes two arguments on appeal. First, he claims that the

district court procedurally erred in applying the cross reference in § 2C1.1(c)(1).

We review the district court’s interpretation and application of the Sentencing

Guidelines de novo. United States v. Johnston, 559 F.3d 292, 294 (5th Cir. 2009).

Second, he argues that his 120-month sentence was unreasonable in light of his

post-offense Army service. We review the substantive reasonableness of a

sentence that contains a downward departure under an abuse-of-discretion

standard. United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008) (citing

Gall v. United States, 128 S. Ct. 586, 597 (2007)). 

B. Guidelines Calculations

Williams first claims that the district court incorrectly calculated the

range of his sentence. He argues that the § 2C1.1(c)(1) cross reference only

applies when the defendant has been convicted of a conspiracy and that it was

not possible for him to have been in a conspiracy with an undercover agent. See 4

United States v. Asibor, 109 F.3d 1023, 1032 (5th Cir. 1997) (“[T]here can be no

conspiracy between one defendant and a government informer.”). The
5

commentary following § 2C1.1 explains why Williams is incorrect and why the

cross reference applies in this case:

Under § 2C1.1(c)(1), if the payment was to facilitate the commission

of another criminal offense, the guideline applicable to a conspiracy

to commit that other offense will apply if the result is greater than

that determined above. For example, if a bribe was given to a law

enforcement officer to allow the smuggling of a quantity of cocaine,

the guideline for conspiracy to import cocaine would be applied if it

resulted in a greater offense level.

U.S.S.G. § 2C1.1, cmt., background.

The predicate for application of § 2C1.1(c)(1) is not the existence of a

conspiracy, but rather that the purpose of the offense was to facilitate the

commission of another criminal offense. At the sentencing hearing, Williams’s

counsel argued that Burke, which also involved a sting operation where a public

official agreed to provide a police escort for cocaine shipments, establishes that

there must be an actual conspiracy for the cross reference to apply. 431 F.3d at

885. Although there was a conspiracy of several officials involved in Burke, the

court did not rely on that fact in applying § 2C1.1(c)(1). Instead, the court noted

that “Burke had already admitted, during his plea colloquy, that the extortion

was committed for the purpose of facilitating the commission of another criminal

offense: aiding in the distribution of cocaine.” Id. Thus, Burke reinforces our

conclusion that the trigger for § 2C1.1(c)(1) to apply is that the purpose was to

facilitate another crime. 

Moreover, we rejected Williams’s exact argument in a recent unpublished

opinion based on similar facts. See United States v. Carr, 303 F. App’x 166 (5th

Cir. 2008). The defendant in Carr was also a police officer who pleaded guilty

under 18 U.S.C. § 1951(a) to accepting cash for “providing protection for a

vehicle he believed contained five kilograms of cocaine.” Id. at 167. The district

court applied the § 2C1.1(c)(1) cross reference and sentenced him to eighty-seven

months. Id. On appeal, Carr argued, just as Williams has in this case, that
 Although unpublished opinions are not precedential and binding on this court, we may 5

cite them, as noted above, for their persuasive value and to maintain consistency in circuit

jurisprudence. See United States v. Meraz-Enriquez, 442 F.3d 331, 333 (5th Cir. 2006) (citing

5TH CIR. R. 47.5.4); see also FED. R. APP. P. 32.1(a).

6

“because, as a matter of law, he could not have conspired with the FBI informant

who paid him, the court should not have applied the cross reference.” Id. at 168.

The court held that the cross reference “applies not when there has been a

conspiracy, but rather when the offense was committed for the purpose of

facilitating the commission of another criminal offense.” Id. at 168–69 (internal

quotation marks and citation omitted). We find Carr persuasive and accordingly

reject Williams’s interpretation of § 2C1.1(c)(1). 

5

Here, the district court correctly concluded that the purpose of Williams’s

actions was to facilitate the crime of drug trafficking by providing a police escort

while the shipments of drugs passed through the county. At the sentencing

hearing, Williams admitted that he understood the purpose of his services to be

to protect a shipment of cocaine. The hypothetical example listed in the

commentary to § 2C1.1(c)(1) is exactly the situation that occurred in this case.

Thus, we conclude that the district court did not err in calculating Williams’s

guidelines range. 

C. Substantive Reasonableness

Second, Williams claims that his sentence was unreasonable because the

district court “underrated” his military service in considering his post-offense

rehabilitation. “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 [i.e., one within the appropriate guidelines range] is unreasonable . . .

[and] we will give great deference to that sentence.” United States v. Alonzo, 435

F.3d 551, 554 (5th Cir. 2006) (internal quotation marks and citation omitted).

“The fact that the appellate court might reasonably have concluded that a
7

different sentence was appropriate is insufficient to justify reversal of the

district court.” Gall, 128 S. Ct. at 597.

Williams’s argument concerns the weight given to his Army service, not

the failure to consider this service. The resentencing order makes clear that the

district court carefully reviewed the belated documents and Williams’s evidence

of his post-offense rehabilitation as part of its § 3553(a) analysis. Indeed, the

need for this deliberate review was the district court’s impetus to vacate the

original sentence. Williams’ service to his country is admirable and worthy of

consideration as a mitigating factor supporting a downward departure.

However, we cannot say that the district court abused its discretion in deciding

to reduce the sentence to 120 months, which was already less than two-thirds

of the low end of the guidelines range, and not to a shorter length. 

III. CONCLUSION

For the reasons stated above, we AFFIRM Williams’s sentence.