United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2007 Decided June 1, 2007

No. 04-3157

UNITED STATES OF AMERICA,

APPELLEE

v.

ROBERT WILLIAMS, A/K/A ROBERT CROWDER,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00136-01)

Ernest W. McIntosh, Jr., appointed by the court, argued the

cause for the appellant.

Patricia A. Heffernan, Assistant United States Attorney,

argued the cause for the appellee. Kenneth L. Wainstein, United

States Attorney at the time the brief was filed, and Roy W.

McLeese III, Assistant United States Attorney, were on brief for

the appellee.

Before: HENDERSON, RANDOLPH and KAVANAUGH, Circuit

Judges.

Opinion for the court filed by Circuit Judge HENDERSON.
2

1

Section 924(e)(1) provides, “[A] person who violates section

922(g) of this title and has three previous convictions . . . for . . . a

serious drug offense . . . shall be . . . imprisoned not less than fifteen

years.” 18 U.S.C. § 924(e)(1). 

2

The description of Williams’s arrest is derived from the Factual

Proffer attached to Williams’s Plea Agreement. Letter from Kenneth

L. Wainstein, United States Attorney, to Mona Asiner, Counsel for

Robert Williams 2 (July 15, 2004) (Plea Agreement), reprinted in

Appellee’s Record Material (RM) at Tab A.

KAREN LECRAFT HENDERSON, Circuit Judge: Appellant

Robert Williams pleaded guilty to unlawful possession of a

firearm and ammunition by a person convicted of a crime

punishable by imprisonment for a term exceeding one year in

violation of 18 U.S.C. § 922(g)(1), unlawfully possessing with

intent to distribute (PWID) cocaine base in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C) and unlawfully possessing with

intent to distribute cannabis in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(D). Because Williams had been convicted of three

prior “serious drug offense[s],” the district court sentenced him

to 15 years of incarceration pursuant to 18 U.S.C. § 924(e).1

Williams now appeals his sentence, arguing that (1) the district

court erred by sentencing him pursuant to section 924(e), (2) he

received ineffective assistance of counsel when his trial counsel

failed to object to his sentence and (3) the Government breached

the plea agreement by alerting the court to his three prior

convictions. For the reasons set forth below, we reject

Williams’s arguments and affirm his sentence.

I.

On February 16, 2004, two members of the United States

Park Police observed a blue Mercury Marquis with temporary

tags exceeding the speed limit in southeast Washington, D.C.

and conducted a traffic stop.2

 When one of the officers

approached the automobile to speak to the driver, he detected
3

the odor of burnt marijuana emanating from the vehicle. After

requesting that the driver lower the car’s tinted windows, he

smelled fresh marijuana and discovered four additional

occupants in the vehicle, including Williams. One of the

officers removed Williams from the car and noticed a heavy

object in one of his jacket pockets. On touching Williams’s

pocket, the officer believed Williams possessed a gun. He then

searched Williams and recovered a .9mm pistol containing

seven rounds of ammunition. Williams was arrested and a

second search of his person revealed 22 ziplock bags of

marijuana and a bag containing eight pink ziplock bags of crack

cocaine.

In an indictment filed March 16, 2004, a grand jury charged

Williams with unlawful possession of a firearm and ammunition

by a person convicted of a crime punishable by imprisonment

for a term exceeding one year in violation of 18 U.S.C.

§ 922(g)(1) (Count 1); PWID cocaine base in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C) (Count 2); PWID cannabis in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count 3); and

using, carrying and possessing a firearm during a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count

4). On July 15, 2004, Williams signed a plea agreement in

which he pleaded guilty to Counts 1, 2 and 3. Williams also

agreed, inter alia, to the following: (1) Count 1 carried a

maximum prison sentence of 10 years, Count 2 carried a

maximum prison sentence of 20 years and Count 3 carried a

maximum prison sentence of five years; (2) the United States

Sentencing Guidelines (U.S.S.G.) Manual would determine

Williams’s “guideline range,” Letter from Kenneth L.

Wainstein, United States Attorney, to Mona Asiner, Counsel for

Robert Williams 2 (July 15, 2004) (Plea Agreement), reprinted

in Appellee’s Record Material (RM) at Tab A; and (3) based on

his criminal history, Williams was a “career offender” subject to

“the career offender provisions of the Sentencing Guidelines,”

id. The Factual Proffer attached to the Plea Agreement stated
4

that “[Williams] had been previously convicted of the following

felony drug convictions in the District of Columbia: Unlawful

Distribution of Cocaine, in 1996, Attempted Distribution of

Cocaine in 1993, and Possession with Intent to Distribute

Cocaine in 1985.” Id. at 8. In exchange for Williams’s

cooperation, the Government agreed (1) “not [to] seek an

upward departure from the otherwise applicable guideline range

established by the Sentencing Guidelines,” id. at 2, (2) to

decrease Williams’s base offense level by three points for

acceptance of responsibility under U.S.S.G. § 3E1.1(b) and (3)

to request that the court dismiss Count 4 at the sentencing

hearing. Id. at 4. 

On July 16, 2004, the district court held Williams’s plea

hearing. In explaining the Plea Agreement, defense counsel

declared, “[Williams] agrees in the plea agreement that he has

been previously convicted and the three felonies are spell [sic]

out.” Tr. 7/16/04, at 8. When asked by the district court about

the nature of the prior convictions, counsel further explained:

There are three drug felonies. Let me get out the full

papers, Your Honor . . . One is distribution of cocaine

where he was sentenced from 20 to 60 months in ’96.

The other is attempt [sic] distribution of cocaine in ’93,

two to six years, ESS, two years probation. Then there

was PWID cocaine in ’85. 20 months to five years . . .

He did the time with some in and out with revocations

and so on.

Id. at 9-10. Despite Williams’s assurance to the court that he

understood the Plea Agreement, the district court found it unfair

to Williams and rejected it, explaining, “[A] waiver of Blakely

rights, particularly by a man with a sixth grade education who
5

3

Williams’s plea hearing occurred before the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005), which

expanded its holding in Blakely v. Washington, 542 U.S. 296 (2004),

regarding the United States Sentencing Guidelines.

isn’t quite sure he can even read the plea agreement is not a

good idea.”3 Id. at 11. 

The parties reconvened for entry of Williams’s guilty plea

on August 5, 2004. Defense counsel began by alerting the

district court that she had previously miscalculated Williams’s

sentence and that the correct sentence under the Guidelines

“inure[d] to the detriment of Mr. Williams.” Tr. 8/5/04, at 2-3.

Counsel explained, “[I]f the Probation Office finds that he is an

armed career criminal . . . the guideline range would be . . . an

offense level 37 minus three points for acceptance of

responsibility, which would be a 34 . . . [s]o pursuant to a plea,

he would be at 262 to 327 months.” Id. at 3 (emphasis added).

When questioned by the court about the severity of the sentence,

defense counsel responded, “I told [Williams] that I’m against

this, but he—this is what he wants to do.” Id. at 4.

Nevertheless, the judge again refused to accept Williams’s

guilty plea.

Although the court had twice expressed its dissatisfaction

with the Plea Agreement, defense counsel resubmitted it one

week later. She also recalculated the suggested sentencing

range, asserting that Williams could receive 188 to 235 months’

imprisonment. In response to questioning by the court,

Williams stated that he expected to be released from prison in a

“[l]ong time . . . [s]ay 15 years” when he is “[a]bout 60

something.” Tr. 8/11/04, at 5. This time, the court accepted his

plea.

On September 17, 2004, the United States Probation Office

issued a presentence report (PSR) for Williams. On October
6

4

In addition, Williams objected “to the 4 level increase re:

defendant using or possessing a firearm or ammunition in connection

with any other felony offense.” Letter from Mona Asiner, Counsel for

Robert Williams, to Deborah Stevens Panzer, U.S. Probation Office

(Sept. 29, 2004), reprinted in Appellant’s Appendix (AA) at Tab 6. 

6th, the Government objected to the PSR’s classification of

Williams as a “Career Offender,” asserting that it “appear[ed]

that [Williams] should be classified as an armed career offender

pursuant to U.S.S.G. § 4B1.4 and 18 U.S.C. 924(e)” and

therefore his “sentence would involve a mandatory minimum

sentence of 15 years of incarceration.”4 Letter from Tricia D.

Francis, Assistant United States Attorney, to Deborah Stevens

Panzer, U.S. Probation Office (Oct. 6, 2004) (Francis Letter),

reprinted in Appellant’s Appendix (AA) at Tab 7 (emphasis

added). Five days later, the probation office issued a revised

PSR categorizing Williams as an armed career offender under

18 U.S.C. § 924(e) subject to a mandatory minimum term of 15

years’ incarceration.

At Williams’s sentencing hearing on October 27, 2004, the

district court concluded that it was required under 18 U.S.C.

§ 924(e) to sentence him to a minimum of 15 years’

imprisonment. The court explained, “The plea agreement notes

that Mr. Williams’ violation of 922(g)(1) has a maximum of 10

years in prison, which is inconsistent with the armed career

criminal finding, but the plea agreement also says the guidelines

apply.” Tr. 10/27/04, at 3. Defense counsel objected, arguing:

[I]n the plea agreement it says that [Williams] would be

subject to the career offender provisions. When I got the

presentence report and I noted my particular objections,

I said I didn’t object to career offender because that’s

what was here. The original presentence report did not

have him as an armed career offender, so when it was

redone, based on the Government’s objection, it made
7

5

Although the Factual Proffer recited that Williams was convicted

of “Attempted Distribution of Cocaine in 1993,” Plea Agreement,

supra, at 8, the PSR stated that his conviction occurred in 1992,

Presentence Investigation Report, Docket No.: CR-04-136-01, at 9.

We rely on the PSR.

him under the Armed Career Offender Act, which is

different than the Career Offender Act.

Id. The court ultimately sentenced Williams to 15 years’

imprisonment for being a felon in possession of a firearm, 15

years for PWID cocaine base and five years for PWID cannabis,

the terms to be served concurrently. This appeal followed.

II.

We address separately Williams’s sentencing, ineffective

assistance of counsel and plea agreement claims.

A. Sentencing Claims

The district court sentenced Williams pursuant to section

924(e) because he pleaded guilty to a violation of section 922(g)

and because, as his PSR indicated, he had been convicted of

three prior “serious drug offense[s]”—unlawful distribution of

cocaine in 1996, attempted distribution of cocaine in 19925 and

PWID cocaine in 1985. Williams argues that the court erred

regarding two of his prior convictions. Specifically, he contends

that an “attempt” crime—like his 1992 conviction of attempted

distribution of cocaine—does not constitute a “serious drug

offense” under section 924(e) and that the PSR alone cannot

establish the fact of his 1985 conviction of PWID cocaine. 

Because Williams failed to raise this argument in the district

court, we review his claims for plain error only. See Fed. R.

Crim. P. 52(b) (“A plain error that affects substantial rights may

be considered even though it was not brought to the court’s

attention.”); see also United States v. Washington, 115 F.3d
8

1008, 1010 (D.C. Cir. 1997). Under that standard, we will

remedy a trial court error only if there is “(1) ‘error,’ (2) that is

‘plain,’ and (3) that ‘affect[s] substantial rights[]’ . . . [and] (4)

the error ‘seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.’” Johnson v. United States,

520 U.S. 461, 466-67 (1997) (quoting United States v. Olano,

507 U.S. 725, 732 (1993)). An error “affect[s] substantial

rights” if it is “prejudicial.” Olano, 507 U.S. at 734. To

establish prejudice in the sentencing context, Williams “must

show a reasonable likelihood that the sentencing court’s obvious

errors affected his sentence.” United States v. Saro, 24 F.3d

283, 288 (D.C. Cir. 1994).

We believe the district court did not err in concluding that

Williams’s 1992 attempted distribution of cocaine conviction

constitutes a “serious drug offense” under section 924(e).

Section 924(e)(2)(A)(ii) defines “serious drug offense” as “an

offense under State law, involving manufacturing, distributing,

or possessing with intent to manufacture or distribute, a

controlled substance . . . for which a maximum term of

imprisonment of ten years or more is prescribed by law.” 18

U.S.C. § 924(e)(2)(A)(ii). In United States v. Alexander, 331

F.3d 116, 130 (D.C. Cir. 2003), we held that the defendant’s

prior conviction of attempted possession with intent to distribute

a controlled substance qualified as a “serious drug offense.” In

so holding, we observed that the Congress did “not speak in

specifics” in defining “serious drug offense” but instead

included “an entire class of state offenses ‘involving’ certain

activities, namely ‘manufacturing, distributing, or possessing

with intent to manufacture or distribute’ a controlled substance.”

Id. at 131 (quoting 18 U.S.C. § 924(e)(2)(A)(ii)). Because we

agreed with the Second Circuit’s statement in United States v.

King, 325 F.3d 110 (2d Cir. 2003), that the term “involving” is

expansive, we concluded that the defendant’s prior attempt

conviction “‘involv[ed]’ possession with intent to distribute a

controlled substance.” Alexander, 331 F.3d at 131. Similarly,
9

6

Williams fails even to mention Alexander in his brief and the

decisions of this court which he does cite are inapposite. Both United

States v. Price, 990 F.2d 1367, 1368 (D.C. Cir. 1993), and United

States v. Seals, 130 F.3d 451, 463 (D.C. Cir. 1997), examine the

definition of “controlled substance offense” under U.S.S.G. §§ 4B1.1

and 4B1.2 (Career Offender provisions). As Application Note 1 to

U.S.S.G. § 4B1.4—the “Armed Career Criminal” sentencing guideline

that applies if a defendant is subject to section 924(e)—states, “[T]he

definitions of ‘violent felony’ and ‘serious drug offense’ in 18 U.S.C.

§ 924(e)(2) are not identical to the definitions of ‘crime of violence’

and ‘controlled substance offense’ used in § 4B1.1 (Career Offender).”

U.S. Sentencing Guidelines Manual § 4B1.4 app. n.1. 

Williams’s 1992 attempted distribution of cocaine conviction

“involv[ed]” distribution of cocaine and thus constitutes a

“serious drug offense” under section 924(e).6 Id.

Moreover, we need not determine whether the district court

erred by relying exclusively on the PSR to establish Williams’s

1985 conviction of PWID cocaine because Williams has not

demonstrated “a reasonable likelihood” that his sentence would

have been reduced had the court required more to establish the

fact of the conviction. See Saro, 24 F.3d at 288 (“[T]he

defendant must show a reasonable likelihood that the sentencing

court’s obvious errors affected his sentence.”). Indeed, the

record does not indicate in any way that the 1985 conviction had

ever been vacated and Williams makes no such assertion on

appeal. Moreover, he admitted the 1985 conviction both at his

July 16, 2004 plea hearing, see Tr. 7/16/04, at 9-10, and in the

Factual Proffer attached to the Plea Agreement, Plea Agreement,

supra, at 8. Because Williams had been convicted of three prior

“serious drug offense[s],” section 924(e) required the district

court to sentence him to a mandatory minimum of 15 years’

imprisonment. See 18 U.S.C. § 924(e)(1) (providing that person

convicted under section 922(g) with three prior serious drug
10

offenses “shall be . . . imprisoned not less than fifteen years”

(emphasis added)).

B. Ineffective Assistance of Counsel Claims

When a criminal defendant raises an ineffective assistance

of trial counsel claim on direct appeal, “this court’s general

practice is to remand the claim for an evidentiary hearing unless

the trial record alone conclusively shows that the defendant

either is or is not entitled to relief.” United States v. Moore, 394

F.3d 925, 931 (D.C. Cir. 2005) (quoting United States v.

Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003)). Williams

argues that he is entitled to an evidentiary hearing to determine

whether his trial counsel’s failure to object to his sentence

imposed under section 924(e) and her failure to verify his 1985

PWID cocaine conviction constituted ineffective assistance. 

To prevail on an ineffective assistance of counsel claim, a

defendant must demonstrate both deficient performance and

prejudice to him. Strickland v. Washington, 466 U.S. 668, 687

(1984). Counsel’s performance is deficient if she “made errors

so serious that [she] was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Moore,

394 F.3d at 931 (quoting Strickland, 466 U.S. at 687). That is,

counsel must provide “reasonably effective assistance.”

Strickland, 466 U.S. at 687. Prejudice occurs if there is a

“reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Moore, 394 F.3d at 931 (quoting Strickland, 466 U.S. at 694).

“[R]easonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

The record conclusively demonstrates that Williams’s trial

counsel did not render ineffective assistance. First, as noted

earlier, our decision in Alexander makes clear that Williams’s

attempted distribution of cocaine conviction qualifies as a

“serious drug offense” under section 924(e). See 331 F.3d at
11

7

Section 4B1.1(a) provides: 

A defendant is a career offender if (1) the defendant

was at least eighteen years old at the time the

defendant committed the instant offense of

conviction; (2) the instant offense of conviction is a

130. Thus, trial counsel’s failure to object to the district court’s

consideration of the attempt conviction in sentencing Williams

was not unreasonable. See Strickland, 466 U.S. at 687. We

need not address whether Williams’s trial counsel acted

unreasonably in failing to independently investigate the fact of

his 1985 conviction because Williams cannot demonstrate

prejudice. Williams twice admitted his 1985 conviction in

district court and he does not argue before us that a more

thorough investigation by counsel would have revealed that the

conviction either did not occur or had been vacated. We “ha[ve]

never held that any claim of ineffective assistance of counsel, no

matter how conclusory or meritless, automatically entitles a

party to an evidentiary remand,” United States v. Poston, 902

F.2d 90, 99 n.9 (D.C. Cir. 1990) (emphasis in original), and,

accordingly, we need not remand here. 

C. Plea Agreement Claim

Williams’s Plea Agreement states that the Government “will

not seek an upward departure from the otherwise applicable

guideline range established by the Sentencing Guidelines” and

that “[Williams] will be subject to the career offender provisions

of the Sentencing Guidelines.” Plea Agreement, supra, at 2.

Williams argues that the Government breached the Plea

Agreement by informing the probation office that “it appears

that [Williams] should be classified as an armed career offender

pursuant to U.S.S.G. § 4B1.4 and 18 U.S.C. 924(e).” Francis

Letter, supra (emphasis added). In other words, Williams

contends that the Government agreed to recommend a sentence

under U.S.S.G. § 4B1.1, the “Career Offender” guideline,7

 and
12

felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant

has at least two prior felony convictions of either a

crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).

8

Section 4B1.4 applies to “[a] defendant who is subject to an

enhanced sentence under the provisions of 18 U.S.C. § 924(e).”

U.S.S.G. § 4B1.4(a). 

9

That said, the Government could no more have agreed to deviate

from the statutorily-required sentence than could the district court.

10Williams’s request that we remand for an evidentiary hearing to

determine whether a breach occurred, see Appellant’s Br. at 22, is also

denied. 

breached that agreement by asserting that Williams should

instead be sentenced pursuant to section 924(e) and U.S.S.G.

§ 4B1.4, the “Armed Career Criminal” guideline.8

We need not address the Government’s alleged breach of the

Plea Agreement in view of our holding that the district court was

statutorily required to sentence Williams to a mandatory

minimum of 15 years’ imprisonment.9

 That is, Williams

pleaded guilty to a violation of section 922(g) and he had been

convicted of three prior “serious drug offense[s].” See 18

U.S.C. § 924(e). Consequently, a remand to the district court for

resentencing would not result in a sentence more favorable to

Williams.10

For the foregoing reasons, the judgment of the district court

is affirmed.

So ordered.