United States v. Willis

Court Case Details
Court Case Opinion




No. 08-4998


Plaintiff - Appellee,



Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00277-RJC-DCK-1)

Submitted: March 26, 2010

Decided: April 15, 2010

Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. Edward R. Ryan, Acting
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for

Unpublished opinions are not binding precedent in this circuit.


David Willis was convicted by a jury of soliciting

murder using a facility of interstate commerce and promising

payment, in violation of 18 U.S.C. § 373; and using a facility

of interstate commerce with the intent that murder for hire be

committed, in violation of 18 U.S.C. § 1958. The district court

sentenced Willis to 210 months’ imprisonment, a sentence at the

bottom of the Sentencing Guidelines range. Willis appeals,

raising three issues: (1) the district court committed plain

error by failing to instruct the jury on entrapment; (2) the

district court erred by not granting Willis a new trial based on

allegedly false testimony from a Government witness; and (3) the

district court imposed a procedurally unreasonable sentence. We


This case revolved around Willis’ plot to kill his ex-

wife. At trial, the Government played Willis’ incriminating

recorded statements made to a confidential informant. The most

important evidence at trial came from Willis’ own statements.

The key conversation between Willis and the informant Parker

took place inside Willis’ truck. During the October 2007

conversation, Willis indicated that he planned to kill his ex-

wife to avoid sharing his pension from the United States Postal

Service. At one point, Willis stated:


I already decided it’s either her or me, and I’ll pop
a cap in my own head before I live like this. I can’t
stand 30 more years at the post office. I need to
retire and enjoy life while I can. And I’ve thought
about this and cussed about this and dreamed about
this and it’s sad, but you know me. I’m as cold
hearted as you are. (Supplemental Joint Appendix
(“S.J.A.”) at 13).

During the conversation, Willis said that he would pay

the informant to arrange for a hit man. Willis also indicated

that he would kill her himself, if the hit man was not

available. “I already know how I’d do it,” Willis said,

describing a plan to spike a drink with antifreeze. (S.J.A. at

15). Willis said he learned about the method from Court TV and

would put the antifreeze in a drink left by a woman on his ex-

wife’s mail route. “Three days later, it doesn’t matter where

I’m at. She’s gonna have stomach pains and get a little funny

and they take her to the hospital. She croaks and it hits you,

boom, kidney failure.” (S.J.A. at 16).

After summarizing his poisoning plan, Willis

nevertheless agreed that having someone else murder his ex-wife

“would be the best way.” (S.J.A. at 17). Willis asked if he

could trust the hit man “to get the job done,” but declined to

meet him, stating “I don’t want anything to do with it if I can

help it. If not, I’m gonna do it myself. She’s gonna drink

some antifreeze. See I’ve got old antifreeze that’s old . . . I

tasted it myself; it is as sweet as cherry juice.” (Id.).


Entrapment occurs when (1) the government induces a

person to commit a crime and (2) the person induced had no

predisposition to engage in the criminal act. Mathews v. United

States, 485 U.S. 58, 63 (1988). In order to establish

inducement, a defendant must show that the government acted in

an excessive manner that would prompt a reasonably firm person

to commit a crime. See United States v. DeVore, 423 F.2d 1069,

1072 (4th Cir. 1970). If the defendant establishes a prima

facie case of inducement, the government then must show that the

defendant’s decision to commit the crime was the product of his

own disposition that did not originate from government

persuasion. See United States v. Osborne, 935 F.2d 32, 38 (4th

Cir. 1991). A defendant is entitled to an entrapment defense

whenever there is sufficient evidence from which a reasonable

jury could find entrapment. Mathews, 485 U.S. at 62.



did not request an entrapment

instruction, this Court’s review is for plain error. United

States v. Olano, 507 U.S. 725, 732 (1993); United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Under the plain

error standard, Willis must show: (1) there was error; (2) the

error was plain; and (3) the error affected his substantial

rights. Olano, 507 U.S. at 732-34. Even when these conditions

are satisfied, the Court may exercise its discretion to notice

the error only if the error “seriously affects the fairness,


integrity or public reputation of judicial proceedings.” Id. at

736 (internal quotation marks, alteration and citation omitted).

We find the trial court did not err, plain or

otherwise, in failing to give an entrapment instruction because

the evidence did not warrant such an instruction. Willis

initiated the discussion about killing his ex-wife, devised a

plan, and suggested he would kill his ex-wife, regardless of the

informant’s involvement. Thus, Willis’ argument that the

informant initiated and encouraged the plot does not counter the

evidence of Willis’ overt predisposition to have his ex-wife

murdered, as demonstrated by Willis’ statements reflecting his

planning and preparation.

We review a district court’s denial of a Rule 33

motion for a new trial for abuse of discretion. United

States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 2006). Under

Napue v. Illinois, 360 U.S. 264 (1959), a defendant is denied

due process if the prosecutor knowingly offers or fails to

correct false testimony. A Napue claim requires a showing of

the falsity and materiality of testimony and the prosecutor’s

knowledge of its falsity. Perjury offered under these

circumstances is material if “there is any reasonable likelihood

that the false testimony could have affected the judgment of the

jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). We

find no abuse of discretion as one of two alleged perjured


statements was not clearly inconsistent and the other alleged

perjured statement was not material.

After United States v. Booker, 543 U.S. 220 (2005),

this Court reviews a sentence for reasonableness, and “whether

inside, just outside, or significantly outside the Guidelines

range,” this Court applies a “deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This

Court first must “ensure that the district court committed no

significant procedural error.” Id. at 51. Only if the sentence

is procedurally reasonable, can this Court evaluate the

substantive reasonableness of the sentence, again using the

abuse-of-discretion standard. Id.; United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009).

In determining whether the district court committed

any significant procedural error, this Court looks to any

failure in the calculation (or the improper calculation) of the

Guidelines range, the treatment of the Guidelines as mandatory,

the failure to consider § 3553(a) factors, the selection of a

sentence using clearly erroneous facts, and any failure to

adequately explain the chosen sentence, including any deviation

from the advisory Guidelines range. Gall, 552 U.S. at 51. This

Court applies a presumption of reasonableness on appeal to a

properly calculated, within-Guidelines sentence. Rita v. United

States, 551 U.S. 338, 352-53 (2007); see United States v. Allen,


491 F.3d 178, 193 (4th Cir. 2007) (“A sentence within the proper

Sentencing Guidelines range is presumptively reasonable.”).

Even if this Court would have imposed a different sentence, this

fact alone will not justify vacatur of the sentence. United

States v. Evans, 526 F.3d 155, 162 (4th Cir. 2008).

Willis claims the district court imposed a

procedurally unreasonable sentence because it incorrectly found

that Willis was not remorseful for his conduct and that Willis

had not accepted responsibility for his conduct. Willis claims

the district court’s statements were tantamount to punishing him

for exercising his right to trial.

We find the district court did not impose a

procedurally unreasonable sentence. After observing Willis’

statement at sentencing, the court made a finding that Willis

was not remorseful and, instead, blamed his situation on the

informant. If anything, Willis was sorry for the situation that

he got himself into, but he did not express any remorse over the

finding that he intended to kill his wife. We also note the

district court sentenced Willis at the bottom of the properly

calculated Guidelines range. Thus, the sentence imposed is

presumptively reasonable. Moreover, while Willis offered a

number of mitigating facts in support of a lower sentence, the

district court properly weighed these facts when considering the

18 U.S.C. § 3553(a) factors. In particular, the district court


expressed its concern about the seriousness of the offense,

which it described as “as serious as it gets.” (Joint Appendix

at 476).

Accordingly, we affirm the convictions and sentence.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

Court and argument would not aid the decisional process.