UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4215

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CORNELIUS GRANT WILLIAMS, JR.,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 07-8150)

Submitted: February 29, 2008 Decided: May 5, 2008

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert A. Ratliff, Mobile, Alabama, for Appellant. Chuck

Rosenberg, United States Attorney, Daniel Grooms, Assistant

United States Attorney, Olivia Hussey, Special Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Cornelius Grant Williams, Jr. was convicted on two drugrelated counts: (1) conspiracy to distribute fifty grams or more

of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846

(“Count One”); and (2) distribution of five grams or more of

crack cocaine, in violation of § 841(a)(1) (“Count Two”). The

district court sentenced Williams to life imprisonment for Count

One--the statutory minimum punishment under § 841(b)(1)(A)(iii)

for a third felony drug offense--and to a concurrent term of 360

months’ imprisonment for Count Two. We affirmed his convictions

and sentence on direct appeal. United States v. Cornelius Grant

Williams, Jr., 229 F. App’x 218 (4th Cir. 2007) (unpublished)

(“Cornelius Grant Williams I”).

On January 22, 2008, the Supreme Court granted Williams’s

petition for writ of certiorari, vacated the judgment of this

court, and remanded the case for further consideration in light

of Kimbrough v. United States, 128 S. Ct. 558 (2007). Because

the statutory minimum sentence for Count One is life

imprisonment, we find that any Kimbrough error in determining the

sentence for either count was harmless. We therefore affirm his

convictions and sentence.
1Williams couches this challenge as an ineffective assistance

of counsel claim, but the Gonzalez-Lopez Court made clear that the

right to counsel of choice and the right to effective assistance of

counsel are distinct rights, though both sounding in the Sixth

Amendment. See id. at 2562-63. To the extent that Williams

intends his challenge to also be heard as an ineffective assistance

of counsel claim, the claim must fail because he has offered little

to show the performance of his counsel was, in fact, deficient.

See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)

(noting that ineffective assistance of counsel claims are

disfavored on direct appeal unless the record “conclusively”

demonstrates deficient performance).

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I.

After a jury found him guilty on both counts, Williams moved

for a new trial, arguing that the district court should have

allowed him to terminate his court-appointed counsel and select a

court-appointed attorney of his own choosing. The district court

denied the motion, and Williams challenges such denial here. We

review the denial of a motion for a new trial for abuse of

discretion. United States v. Greene, 834 F.2d 86, 88 (4th Cir.

1987). It is an abuse of discretion to rely on an erroneous legal

premise in denying such a motion. See United States v. Hedgepeth,

418 F.3d 411, 419 (4th Cir. 2005). We review legal issues de novo.

See United States v. Legree, 205 F.3d 724, 728 (4th Cir. 2000).

 Williams argues that the district court erred by refusing to

appoint an attorney of Williams’s own choosing, citing United

States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006).1 Indeed,

Gonzales-Lopez confirms that the Sixth Amendment “commands . . .

that the accused be defended by the counsel he believes to be
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best.” Id. at 2562. The Court limited the scope of this right,

however: “[T]he right to counsel of choice does not extend to

defendants who require counsel to be appointed for them.” Id. at

2565. Williams could not afford retained counsel; therefore, he

had no right to choose the particular attorney that the court

appointed for him. Thus, the district court properly denied

Williams’s motion for a new trial.

II.

Williams also lodges two constitutional challenges to his

sentence, which we review de novo. See United States v. Cheek, 415

F.3d 349 (4th Cir. 2005).

A.

Williams argues that the district court erroneously applied a

career-offender enhancement to his sentence without submitting the

fact of the prior offenses to a jury, in violation of the Sixth

Amendment. The Supreme Court explicitly held in United States v.

Booker, 543 U.S. 220 (2005), however, 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." 543 U.S. at 244

(emphasis added). As this court has since made clear, “the Supreme

Court continues to hold that the Sixth Amendment (as well as due
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process) does not demand that the mere fact of a prior conviction

used as a basis for a sentencing enhancement be pleaded in an

indictment and submitted to a jury for proof beyond a reasonable

doubt.” Cheek, 415 F.3d at 352. 

Nonetheless, Williams claims that Shepard v. United States,

544 U.S. 13 (2005), decided just two months after Booker, implies

that disputed facts of a prior conviction are no longer excepted

from Booker’s holding. In particular, Williams argued before the

district court that one of his prior convictions, a felony under

federal law, would have been prosecuted as a misdemeanor under

Virginia state law. Williams appears to suggest on appeal that

this argument created a factual dispute as to the nature of his

prior conviction that should have been resolved by a jury.

This court has read Shepard as “instruct[ing] [lower courts]

to review ‘the statutory definition, charging document, written

plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant

assented’” to determine whether “prior convictions . . . fall

within a federal sentencing enhancement provision.” United States

v. Nelson, 484 F.3d 257, 261 n.3 (4th Cir. 2007) (quoting Shephard,

544 U.S. at 16). Courts are not to resort to other extrinsic

evidence such as underlying police reports or complaint

applications to determine the nature of a prior conviction.

Shepard, 544 U.S. at 16. Here, however, Williams conceded before
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the district court that his two prior drug convictions were indeed

felonies under federal law. This is all that was required to be

shown for the district court to apply the enhanced sentencing

provisions applicable to Williams’s offenses; there simply was no

factual dispute regarding the prior convictions remaining for a

jury to resolve. The district court ran afoul of neither Booker

nor Shepard, then, in engaging in judicial factfinding for purposes

of enhancing Williams’s sentence on the basis of his prior

convictions.

B.

Williams also argues that the district court committed Booker

error by treating the United States Sentencing Guidelines (the

“Guidelines”) as mandatory, rather than advisory, in declining to

impose a more lenient sentence on the basis of the Guidelines’

disparate treatment of the crack and powder forms of cocaine. Of

course, Williams’s sentence for his Count One conviction was not

dependent on the Guidelines, since he faced a mandatory minimum

sentence of life imprisonment. Williams recognized as much before

the district court in his written objections to the Presentence

Report (the “PSR”), acknowledging that his two prior convictions

“create[] a situation in which he is facing life imprisonment” as

a minimum sentence. J.A. Vol II., at 28. In hopes that the

district court would find merit in his challenge to his prior

convictions, however, Williams asked the court to consider, under
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18 U.S.C. § 3553(a), the harsher punishment exacted upon drug

offenders dealing in crack than those dealing in powder cocaine.

The district court nevertheless imposed the statutory minimum

sentence of life imprisonment for Count One, and a concurrent

sentence of 360 months’ imprisonment for Count Two, at the bottom

of the Guidelines range of 360 months to life. On appeal to this

court, Williams argues that the district court, by not considering

his argument that crack cocaine offenses are disproportionately

punished in comparison to powder cocaine offenses, effectively

treated the Guidelines as mandatory in violation of Booker.

In Cornelius Grant Williams I, we rejected this line of

argument and affirmed Williams’s sentence on the basis, inter alia,

of this court’s precedent in United States v. Eura, 440 F.3d 625

(4th Cir. 2006), which prohibited sentencing courts from

considering the supposed inequity of the disparate treatment of

crack and powder cocaine in fashioning a Guidelines sentence. See

id. at 633 (“[S]entencing courts should not be in the business of

making legislative judgments concerning crack cocaine and powder

cocaine. . . . [I]t simply would go against two explicit

Congressional directives to allow sentencing courts to treat crack

cocaine dealers on the same, or some different judicially-imposed,

plane as powder cocaine dealers.”). After our opinion in Cornelius

Grant Williams I, however, the Supreme Court issued United States

v. Kimbrough, 128 S. Ct. 558 (2007), which effectively overruled
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Eura. The Kimbrough Court held that “it would not be an abuse of

discretion for a district court to conclude when sentencing a

particular defendant that the crack/powder disparity yields a

sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes,

even in a mine-run case.” 128 S. Ct. at 575. It is the impact of

Kimbrough on Williams’s sentence that forms the basis for the

instant remand of Cornelius Grant Williams I.

Kimbrough did nothing to alter the settled rule that Bookertype errors are subject to harmless-error analysis, see United

States v. Robinson, 460 F.3d 550, 557-58 (4th Cir. 2006) (applying

harmless-error analysis to Booker claims on Supreme Court remand).

An error that does not affect a defendant’s substantial rights is

harmless. Id. at 557. A defendant’s substantial rights are not

affected if “the court would have imposed the same sentence in the

absence of the constitutional error.” United States v. Shatley,

448 F.3d 264, 267 (4th Cir. 2006).

Here, even if the district court had been sympathetic to

Williams’s argument that the crack/powder disparity is unfair, it

would have had no choice but to sentence Williams to life

imprisonment, the statutory minimum sentence for Count One. Any

Kimbrough error, then, was harmless, as Williams “would have

[received] the same sentence in the absence of the constitutional

error.” Shatley, 448 F.3d at 267. See also United States v.

Blandin, 154 F. App’x 325, 327 (unpublished) (4th Cir. 2005)
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(holding that “there is simply no Booker error” where a defendant

was sentenced to the statutory minimum sentence); United States v.

Jones, 205 F. App’x 327, 338 (6th Cir. 2006) (unpublished) (“We

have held that when the defendant has been sentenced to the

statutory mandatory minimum, Booker is not implicated.”); United

States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir. 2005) (finding

harmless Booker error where defendant received statutory minimum

sentence); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir.

2005) (holding that a Booker error committed alongside the

imposition of a statutory minimum sentence “is a prototypical

example of harmless error”). To remand for resentencing under

these circumstances “would amount to an empty formality,” Shatley,

448 F.3d at 268 (internal quotations omitted), that we decline to

undertake. Cf. Jones, 205 F. App’x at 338 (“We have declined to

remand for resentencing pursuant to Booker an appeal from a

sentence imposed for one count when the defendant received a longer

or equal statutory mandatory minimum term on another count and the

two run concurrently.”).

IV.

Accordingly, we affirm Cornelius Grant Williams, Jr.’s

conviction and sentence. We dispense with oral argument because

the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid in the

decisional process.

AFFIRMED