# UnitedStates C ourt of App eals For the First Circuit

No. 09-1811 UNITED STATES OF AMERICA, Appellee,

v . DURRELL WILLIAMS, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

Before Lynch, Chief Judge, Boudin and Howard, Circuit Judges.

Paula D. Silsby , United States Attorney and Renée Bunker, Assistant United States Attorney, on brief for appellee. Sarah A. Churchill and Strike, Goodwin & O'Brien on brief for appellant.

December 28, 2010We review the facts in the light most favorable to the jury's 1 verdict. United States v. Gonzalez-Ramirez, 561 F.3d 22, 24 (1st Cir. 2009). -2-

HOWARD, Circuit Judge . A jury convicted Durrell Williams

on numerous drug and gun charges. The district court sentenced him to twenty-five years in prison. O n a p p eal Williams contends that his court-appointed attorney was given inadequate ti m e t o prepare for trial and that the government's evi d e n c e was insufficient to convict him. He also asserts that his sentence was unreasonable and suffered from computational errors. After careful review, we affirm in all respects. I. BACKGROUND 1

An inter-agency sting nabbed Williams for heading a drug and gun conspiracy in Portland, Maine. We brie f l y d e scribe the sch e m e . Originally from Queens, a borough of New York City, Williams moved to Portland at some po int in 2004 or 2005 to sell

c r a c kc o c a i n e . T h e r e h e me tM a i n e n a t i v e J o s h u aH e b e r ta n dother middlemen who facilitated distribution. Williams also sold directly to users, sometimes from his apart m e n t , sometimes in a car driven by his then-girlfriend Sherina Howard, with whom he lived, and from time to time on his bicycle. He used part of his drug proceeds to purchase handguns. His main gun supp l i e r w as Wade Collett, a firearms-dealer licensee of Red Wheel Enterprises in Falmouth, Maine. Because Williams was a felon, he employed intermediaries as straw purchasers to buy guns on his behalf. At times, Hebert would-3-

p urchase a gun from Collett, create a false bill of sale that identified someone other than Williams, and then convey the gun to Williams instead of the individual identified on the bill of sale. At other times, Williams would a c c o mpany another associate to Collett's gun shop. There Williams would tell the individual which gun to buy, that person would ask to "borrow" money from Williams, and Collett would process the t r a n s a ction knowing the gun was for Williams. During the course of the conspiracy, W illiams traveled to Queens numerous times in orde r t o " re-up" (i.e., obtain more crack) and sell the guns he had acquired in Maine.

In Ju n e 2008, Williams and Collett were indicted on several gun charges in federal district court in Ma i n e . Collett entered into a plea agreement, but Williams did not. The government later filed a superceding indictment, again charging Williams with the gun violations, as well as charging Williams and Hebert with a drug-trafficking conspiracy involving fifty or more grams of cocaine base. Like Collett, Hebert agree d t o p l e ad guilty, but a second round of plea negotiations with Williams failed. Williams's trial

was s c h e duled to begin on January 28, 2009, but was later rescheduled to February 17 due to d e f e n s e counsel's illness. In mid-January, it became clear that co u n s e l's illness would prevent him from continuing to represent Williams. The cour t, with Williams's consent, appointed anotherlawyer from the same firm. Although new counsel Sarah Churchill had already met with Williams,Churchill represented Williams on appeal through briefing. 2 Two weeks before we were to hear argument, Williams filed a grievance against Churchill with the Maine Board of Overseers crit i c i zing her advocacy at trial and on appeal. The next day Churchill moved to withdraw as counsel for Williams. We granted Churchill's motion to withdraw, provided for the appointment of substitute counsel, and removed the case f r o m the oral argument calender; at the time, however, we reserved decision on whether to reschedule oral argument or take the case as submitted on the -4- she was away on a pre-scheduled vacation a t the time of the appointment. The court continued trial until February 23, 2009, so that Churchill would have an additional week to prepare. In doing so, however, the court admonished that " I want to get this matter tried. [Williams has] been sitting there for some time."

On February 13, 2009, Churchill filed ano t h e rmotion to continue trial. She cited the "voluminous" material the government had produced, consisting of "six compact di s k s c ontaining app roximately 700 pages of written material and two compact disks which contain hours of recording of telephone calls," and suggested that mo r e t i me w a s n e c e s s a r y" t oe n s u r e t h a tp r o p e rc r o s sexamination can occur." The court denied the motion in a paperless order, but inv i t e dChurchill to request additional time "[s]hould Counsel [a]pprehend during [t]rial there exists any prejudice from this Order."

After a three-day trial, the jury co n v i c ted Williams on all counts. The court sentenced him to 300 months on t he drug charge, to be served concurrently with lesse r t i m e he received on the gun charges. Williams appealed. 2briefs. We now determine that oral argument is unnecessary, see

Fed. R. App. P. 34(a)(2), and proceed to resolve the appeal. -5- II. DISCUSSION A. Motion to Continue Trial Williams argues that four weeks was not enough time for Churchill to prepare for trial in light of the materials she needed to review. Williams also argues that additional time c o u l dhave "improved" Churchill's impeachment of some of the government's witnesses. In particular, Williams postulates -- for the first time on appeal -- that more time might have allowed Churchill to obtain a record show i n g t h at Williams was incarcerated in New York from September 2004 to May 2005 in connection with an unrelated charge. According to Williams, if obt a i n e d that record would have discredited "several" of the government's witnesses, all of whom (we are told) testified that Williams was in Maine during that period.

We review the district court's deni al of a motion to continue for abuse of discretion. United Sta t e s v. MangualSantiago, 562 F.3d 411, 429 (1st Cir. 2009). Each case must be evaluated on its own facts. United States v. Torres, 793 F.2d 436, 440 (1st Cir. 1986). Relevant factors in our analysis include "the

reasons contemporaneously presented in support of the request, the amount of time needed for effective preparation, the complexity of the case, the extent of inconvenience to others if a continuance is granted, and the likelihood of injustice orunfair prejudice-6-

attributable to the d e n i a l of a continuance." United States v. Rodríguez-Durán, 507 F.3d 749, 763 (1st Cir. 2007) (citing United States v. Saccoccia, 58 F.3d 754, 770 (1st Ci r. 1995)). To show abuse, the aggrieved party must establish that "the court exhibited an 'unreasonable and arbitrary insistence upon expeditiou s ness in the face of a justifiable request for delay.'" Id. (quoting United State s v . R odriguez-Marrero, 390 F.3d 1, 21-22 (1st Cir. 2004)). "Identifying prejudice from the ruling is essential." Id. (citing Saccoccia, 58 F.3d at 770).

Williams has not shown that an abuse occurred. Attorney Churchill moved for a continuance on the basis of a broad assertion that the material she needed to review -- 700 pages of documents and "hours" of recorded telephone calls -- was voluminous. Other than volume, no specific explanation h a s b e e n provided as to why those particular materials justified additional time. On t h e b a s is of this broad a s s e r t ion alone, we are reluctant to second-guess the district court's conclusion that four weeks was adequate, especially in light of the court's previous continuance to accommo d a t e h er. See, e.g., Rodríguez-Durán, 507 F.3d at 767 (denial of continuance no abuse when counsel had about a month to review approximately 1000 pages of documents).

We n o t e t h a tt h e c a s e a g a i n s tW i l l i am s w a s n o to v e rly complex. Although the superceding in d i c t m ent contained thirteen counts against Williams and involved nearly forty discr e te-7-

a l l e gations, they all pertained to one conspiracy involving a l i m i ted number of individuals and two related schemes (pedestrian drug activity and gun transac t i ons which were themselves sub s t a n t i ally similar). The trial was short, lasting only three days from opening arguments to verdict. See, e.g., Unite dS t a t es v. Waldman, 579 F.2d 649, 653 (1st Cir. 1978) (denial of continuance not an abuse in case involving a f i f ty-eight count indictment and eight-day trial). Moreover, Churchill did not shoulder that burden alone: a colleague, who presumably took part in trial preparation, was present throughout trial and cross-examined about half of the government's witnesses. Cf. United States v. Hurley, 63 F.3d 1, 16 (1st Cir. 1995) (denial of continuance no ab u s e i npart because counsel benefitted from work of co-defendants' counsel).

Additionally, we discern no unfair prejudice. Williams's prejudice argument on appeal focuses on the purported existence of

a record of his incarceration that, he claims, Churchill could have obtained if only the court had al l o w e d t h e continuance. None of this, h o w e v er, was presented to the district court in the first instance. Although sometimes prejudice might become clear through hindsight alone, see Rodríguez-Durán, 507 F.3d at 765, this is not

one of those cases. According to the appellant's brief, Churchill learned shortly before trial that at least one governme nt witness would testify t h a t W i lliams was in Maine as early as 2004. Churchill then attempted to obtain a record of W i l l iams's-8-

incarceration for impeachment purposes, but that attempt failed for reasons that remain unclear. The salient point, though, is that -- despite the court's open and express invitation to renew the motion to continue when presented with c o g n i zable prejudice -- counsel

never sought a continuance to obtain the record that Will i a m s n ow invokes. In any event, we also reject the prejudice hypothesis on its merits. In United Stat e s v . B r uck, a case involving roughly

comp a r a ble circumstances, we affirmed the denial of a continuance to deve l o p p s ychological evidence. 152 F.3d 40 (1st Cir. 1998). Recognizing the defendant's history of ps y chological illness, the district court had ordered a psychol o g i cal examination, which concluded that the defendant was competent to stand trial. Id. at 45-46. On the eve of trial, th e defense sought a continuance to obtain additional evidence showing that the defendan t w a s insane. Id. The court denied the continuance, and we affirmed: Bruck has mad e n o e ffort to point us to evidence suggesting that he had a diminished capacity to form criminal intent and/or that he was legally insane at the time he committed his c r i me s . All he has done is to emphasize that there is evidence he never obtained . . . that might have assisted him in generating a last minute, mens rea-related defense. This argum e n t is plainly insufficient for us to find an a b use of discretion on this record . . . . In so rul ing, we also note Bruck's a p p a r ent lack of diligence in failing to secure the missing evidence in the two and one-half years since his trial, despite the fact that the extent to whi ch the moving party may have been prejudiced by the denial of a motion to continue is on e o f t h e factors we look to in ass essing whether the lower court acted within its discretion.W e hasten to add that Williams makes too much of his 3 purported incarceration in any event. It was not an alibi. At best, it could have impeached one government witness, Jose Ortiz, who testified that Williams was in Maine as early as 2004. Several other key government witnesses, however, testified almost uniformly that their dealings with Williams began in mid 2005 or later, which is after Williams claims he was released from prison. -9- Id. at 46-47. Accord U n i t ed States v. Warshak, Nos. 08-3997, 08- 4085, 08-4087, 08-4212, 08-4429, 09-3176, 2010 WL 5071766, at *24 (6th Dec. 14, Cir. 2010) (no prejudice resulting fro m d e n i al of continuance when defendant argued that more time might have revealed exculpatory evidence).

Similarly, here: Williams's phantom record remains missing even today, nearly two years after his tri a l , and speculation about what assistance it might have ren d e r ed to his defense falls hopelessly short of establishing, as h e mu st, a likelihood of prejudice. 3

The shor t o f it is that, based on the record before us, the district court acted well within its discretion in refusing any further delay. B. Motion for Acquittal During trial, Williams moved unsuccessfully for acquittal at the close of the evidence. See Fed. R. Crim. P. 29. On appeal, Williams argues that two witnesses, his former girlfriend Howard and one Ortiz, were "impeached to such a d egree that no rational jury could have believed them. " For this reason, and based on otherWilliams does not argue that the district cour t e r r ed in 4 denying his Rule 29 motion as to the gun charges. -10- alleged deficiencies of the government's "various witnesses," William s c l a i ms that he should have been acquitted on the drug charge. 4 We quickly dispatch this argument. "[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentati on, are deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones." Id. Instead, "a litigant has an obligati on 'to spell out its arguments squarely and dist inctly,' or else forever hold its peace." Id. (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)). See also Harriman v. Hancock County, No. 09-2284, 2010 WL 4923541, at *4-*5 (1st Cir. Dec. 6, 2010) (applying Zannino and holding that underdeveloped arguments on app e a l are deemed waived).

Williams's argument here consists of a single threesentence paragraph. In it, he claims broadly that Ortiz and Howard cannotb e b e l i e v e db a s e do ni mp e a c hme n tt h a th e d o e s n o td e s c r ibe in any meaningful detail. Likewise, he claims that testimony from other witnesses, n o n e of whom he identifies, cannot support his conviction base d o n i nconsistencies and other issues that he tooWe note that if we were to reach the merits of his argument, 5 we would easily reject it. Reading the record in the light most hospitable to the government, and resolving credibility issues in favor of the verdict, we see more than enough evidence to support the jury's determ i n a tion that Williams participated in a drugtrafficking conspiracy involving fifty or more grams of cocaine base. See United States v. Cruz-Rodriguez, 541 F.3d 19, 2 6 ( 1st Cir. 2008) (reciting standard of review for assessing sufficiency). (3.5 grams/week * seven weeks) + (forty grams) + (3.5 grams) 6 = sixty-eight grams. The seven-week figure is presumably based on the assumption that there are four weeks in each month and that the baseline time period, from which one week is subtracted, is two months. -11- does not adequately d e s c ribe. Because his skeletal argument is plainly insufficient, we deem it waived. 5 C. Sentencing Williams challenges his sentence on several grounds. We examine each in turn, with reference to t h e 2 008 U.S. Sentencing Guidelines Manual ("U.S.S . G . " ). See United States v. Roa-Medina, 607 F.3d 255, 257 (1st Cir. 2010) (examiningsentencing challenge based on guidelines in effect at time of sentence).

First, Williams a rgues that the district court miscalculated the drug quantity attributable to him for purposes of establishing his base offense level. According to Williams, Hebert testified that he purchased from Williams anywhere fr om 3.5 to fourteen grams of crack per week (and, on one occasion, forty grams) over a two-month period. By Williams's estimate, that totals sixtyeight grams. But the revised presentence investigation report (PSI 6 Report), which the district court adopted, calculated drug quantity(3.5 grams/week) * (4.3 weeks/month) * (three months) + 7 (forty grams) = 85.15 grams. -12- b a s e d Hebert's purchases over a three-month period. With the

a d d i tional month included, the PSI Report estimated 85.15 grams. 7 This difference of 1 7 . 1 5 grams is significant because, if it were subtracted from the total drug-quantity estimate (164.35 grams), the revised estimate would fall just shy of 150 grams (147.2 grams, to be precise). Consequently, Williams's base offense level would be two levels lower. See U.S.S.G. § 2D1.1(c)(4).

We review a sentencing court's drug-quantity calculations for clear error. United States v. Cintron-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010). Generally, "we must honor such findings 'unless,

on the whole of the record, we form a strong, unyielding belief that a mistake has been made.'" United States v. Platte, 577 F.3d 387, 392 (1 s t Cir. 2009) (quoting Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990)). "The calculation of drug quantities is not an exact science, and a sentencing court charged with that responsibility need not be precise to the p o i n t of pedantry. Rather, a sent encing court may make reasoned estimates based on historical data." Id. See also United States v. Kinsella, 622 F.3d 75, 86 (1st Cir. 2010) (recognizing that a sentencing judge "is not required to be a mathematician or to make findi n g s with computerized certainty").-13- Under this defer ential standard, we see no error in the d i s t rict court's drug-quantity calculations. True, Hebert at one point testified that he bought crack from Williams "for a couple of

mon t h s . " But during trial the government admitted bills of sale related to firearm transactions that book-end Hebert's dealings with Williams to about a three-month period. It was reasonable for the court to infer that throughout that period Hebert was buying crack from Williams in addition to selling him guns. Hebert's testimony d o e s n o t c o n t r a d i c t t h a t e v i d e n c e i n a n y e v e n t . Wh i le logic dictates that two is not three, the court was free to int e r pret Hebert's statement idiomatically; in that light alone, and certainly in light of the other evidence, thre e m o n t hs is a perfectly justifiable construction of "a couple of months."

Second, Williams challenges a two-level increase for possession of a firearm in connection with drug traff i c k i n g , see U.S.S. G . § 2D1.1(b)(1), and another two-level increase for asking his ex-girlfriend, Howard, to perjure herself before the grand jury, see U.S.S.G. § 3B1.1(a). Williams supports these challenges with the following blanket statement: "These findings are not supported by the record." That declaration is not enough. We therefore deem them waived. Zannino, 895 F.2d at 17.

T h i r d , he argues that the court placed him in the wrong criminal history category. According to Williams, he should have received one, rather than two, criminal history points stemming fromT h e g o v e r nme n td o e s n o tc h a l l e n g e t h e c o u r t ' s s i x t y - month 8 downward variance. -14- a youthful offender adjudication on a New York robbery charge, see U.S.S.G. § 4A1.1(b), and no points at all (rather than the one point assigned) for a New York reckless endangerment charge, see U.S.S.G. § 4A1.1(c). Because this would decrease his total criminal history points to eight from ten, Williams concludes that the court should have calcul ated his sentence based on a criminal history category of IV instead of V. We see no error in either assignment of points. Although Williams's youthful offen d er adjudication originally resulted in only probation, the court correctly assig ned two criminal history point s based upon the sentence imposed when that probation was revoked. U.S.S.G. § 4A1.2(k)(1). The sentence upon revocation was imposed the same day as a one-year sentence for drug possession, which the court also correctly counted separately. U.S.S.G. § 4A1.2 cmt. n.11. As t o t h e second argument, Williams

o f f e r s n or e a s o nt od i s t u r bt h e c o u r t ' s d e t e rm i n a t i o nt h a th is conviction for reckless endangerment in the second degree (which involved fleeing in a motor vehicle from th e p o l i ce) entailed a degree of culpability and recurring criminal conduct dissimilar to mere reckless driving. U.S.S.G. § 4A1.2 cmt. n.12.

Fourth, Williams argues that his variant sentence of 300

m o n t h s w a s s u b s t a n t i v e l y u n r e a s o n a b l e b a s e d o n h i s y o u t hand his previous sentences, which were far lower. The mandatory minimum of 8-15-

240 months, he insists, would have been more t h a nenough to serve the purposes of 18 U.S.C. § 3553(a). The district court enjoys wide latitude in sentencing decisions. United States v. Rivera-Gonzalez, No. 0 8

- 2 1 42, 2010 WL 4905170, at *7 (1st Cir. Dec. 1, 2010). Ultimately, "the linchpin of a reasonable sentence is a p lausible sentencing rationale and a defensible result." Id. (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).

We have no difficulty con c l u d i n g that 300 months was a

rea sonable sentence for Williams's crimes. The court stated that this was "one of the more serious d r u g [

- ] gun offenses" it had encountered, and th a t Williams's gun and drug trafficking was a "volatile mixture" that raised serious public safety concerns. The court als o noted that Williams's suborning of perjury, which occurred while he was incarcerated, undermined his statement during allocution that a lesser sentence would be equally rehabilitative. Nonetheless , the court twice recognized Williams's young age and stated that 360 months was "perhaps, extremely high" in light of his prior sentences, and so imposed a sentence that was six t ym o n ths below the guideline range. We are satisfied that this sentence was a reasonable one.

Fifth and finally, we permitted Williams to file a pro se supplemental brief based on his request "to make an argument in his

own w o r ds to supplement the arguments already made by counsel." Williams's pro se supplemental brief seeks a remand for resentencingIn addition to his sentencing argument described in text, he 9 appears to argue that Churchill was ineffective under Strickland v. W a s h i n g t o n, 466 U.S. 668 (1984), and its progeny; but that is a claim that must first be made in the district court under 28 U.S.C. § 2255. See, e.g., United States v. Gonzalez-Vazquez, 219 F.3d 37, 42 ( 1 s tC i r . 2 0 0 0 ) ( r e c i t i n gr u l e , c o l l e c t i n gc a s e s , a nd recognizing an exception not applicable here). See United Stat e s v. Reevey, No. 10-1812, 2010 WL 5078239, 10 at *2-*4 (3d Cir. Dec. 14, 2010) (unpublished); United States v. Wilson, No. 10-4160, 2010 WL 4561381, at *2 (4th Cir. N o v . 12, 2010) (unpublished); United States v. Lewis, No. 09-3329, 2010 WL 4262020, at *3 (10th Cir. Oct. 29, 2010); United States v. Glover, No. 09-1725, 2010 WL 4250060, at *2 (2d Cir. Oct. 2 7 , 2 0 1 0) (unpublished); United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010) (dicta); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir. 2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010); United States v. Hall, No. 09-10216, 2010 WL 4561363, at *3 (9th Cir. Aug. 12, 2010) (unpublished). -16- in light of the Fair Sentencing Act of 2010, P ub. L. No. 111-220, 1 2 4 S t at. 2372, in which Congress adjusted the ratio of penalties f o r crack and powder cocaine offenses. Among other changes, 9 C ongress increased the amount of cocaine base a defendant must possess in order to trigger a mandatory minimum sentence of five or ten years. Fair Sentencing Act § 2(a)(1), 124 Stat. at 2372.

Williams does not claim tha t h e i s entitled to benefit from the new mandatory mini mum penalties, presumably because his sentence of 300 months was well above any applicable minimum. Other courts to consider the issue have r e a s o n e d that the statutory changes wrought by the Fair Sentencing Act do not have retroactive effect and thus would not benefit a defendant in Williams's position, a l t h o ugh that remains for now an open question in this circuit. 10-17- Instead, h i s a r gument seems to be that he ought to be resentenced according to what he expects will b e more favorable forthcoming sentencing guidelines. Congress did indeed direct the U.S. Sentencing Commission to amend it s guidelines to reflect the

new crack-to-powder ratio, see Fair Sentencing Act § 8, 1 2 4 S t a t. at 2374, but Williams's request is premature at this juncture. The Commission has not yet issued new permanent guidelines, nor has it determined whether any new guidelines will have retroactive effect. See U . S .S.G. § 1B1.10.(c) (not referencing emergency amendment to U.S.S.G. § 2D1.1(c), Amend. 748 (effective Nov. 1, 2010)). If the Commission adopts retroactive changes to the guidelines that would benefit Williams, he is free to petition for resentencing pursuant to 18 U.S.C. § 3582(c)(2).

Affirmed.