ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA District Court Judge: The Honorable Stewart Dalzell (Criminal No. 02-00172-27).
The opinion of the court was delivered by: Fuentes, Circuit Judge
Submitted Under Third Circuit L.A.R. 34.1(a) March 2, 2006
BEFORE: SLOVITER and FUENTES, Circuit Judges, and RESTANI,*fn1 Chief International Trade Judge.
Kenneth "Malik" Williams appeals from his conviction following trial for conspiracy to distribute cocaine and cocaine base, and possession of a firearm in furtherance of a drug trafficking offense. Williams also appeals his sentence of 420 months in prison. Regarding his conviction, Williams argues that the District Court erred in failing to provide adequate jury instructions as to "multiple conspiracies" and as to the firearm charge. Williams also argues that the evidence was insufficient for conviction on the firearm charge, and that the District Court should not have prohibited Williams from cross-examining a key prosecution witness about his statement that he had never committed murder. Lastly, Williams argues that his case should be remanded for resentencing in accordance with the Supreme Court's opinion in United States v. Booker, 543 U.S. 220 (2005). We reject Williams' appeal of his conviction but remand for resentencing under Booker as to his conspiracy conviction.
In October 2002, Williams was indicted along with thirty-six co-defendants for conspiracy to distribute cocaine and cocaine base. Williams was also charged with possession of a firearm in furtherance of a drug trafficking crime pursuant to 18 U.S.C. § 924(c)(1)(A). The firearm charge arose out of a shootout that occurred when Williams and several co-conspirators drove to Penrose Plaza, a shopping mall in South Philadelphia, in search of men who had kidnapped the girlfriend and children of one of Williams' co-conspirators in an attempt to extort cash and cocaine.
The District Court severed the defendants' cases into several groups and conducted seven separate trials. The jury hung at Williams' first trial in February 2004, and the Court declared a mistrial. Following a second trial in July 2004, Williams was convicted on both counts.
Williams was sentenced in October 2004, after the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), but prior to Booker. The District Court interpreted Blakely to bar enhancements under the Federal Sentencing Guidelines based on facts not found by the jury. Based on this view, the District Court concluded that the appropriate range for the conspiracy count was 262 to 327 months, and rejected an upward enhancement for Williams' managerial role. Within this range, the Court sentenced Williams to 300 months. On the firearm possession count, the Court found that the firearm was discharged and sentenced Williams to a 120-month consecutive sentence, the mandatory minimum under 18 U.S.C. § 924(c)(1)(A)(iii).
Williams argues that the District Court erred in its jury instructions by failing to give adequate guidance on the concept of multiple conspiracies and on the firearm charge.*fn2 There is no evidence that Williams objected on this basis at trial, and we therefore review the instructions for plain error. United States v. Guadalupe, 402 F.3d 409, 410 n.1 (3d Cir. 2005). Under the plain error standard, "'before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the ...