United States v. Gray , 176 F. App'x 315 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-20-2006
USA v. Gray
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3416
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3416
UNITED STATES OF AMERICA
v.
KEVIN L. GRAY,
also known as GOLDIE,
Kevin L. Gray,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 04-cr-00109-2)
District Judge: Honorable Thomas M. Hardiman
Submitted Under Third Circuit LAR 34.1(a)
April 20, 2006
Before: SLOVITER and AMBRO, Circuit Judges,
and DuBOIS,* District Judge
(Opinion filed : April 20, 2006)
OPINION
AMBRO, Circuit Judge
*
Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Kevin Gray appeals the sentence entered by the United States District Court for the
Western District of Pennsylvania on July 7, 2005. Gray contends that the District Court
erred in calculating his sentence under the Sentencing Guidelines. We disagree, and thus
affirm.
I.
Because we write for the parties, we only briefly recount the relevant facts. In
September 2004, a federal grand jury returned a superseding indictment charging Gray
and two co-conspirators with conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 846. At trial, two
cooperating witnesses (also participants in the conspiracy), Garry Smith and Thomas
Gilliam, testified that they delivered or discussed delivering multiple kilograms of
cocaine to Gray for distribution. The jury convicted Gray of the lesser included offense
of conspiracy to distribute and possess with intent to distribute at least 500 grams, but less
than 5 kilograms, of cocaine.
At sentencing, the District Court determined that, based on the testimony of Smith
and Gilliam, there was sufficient evidence to conclude that the amount of cocaine
attributable to Gray was between 3.5 and 5 kilograms, which resulted in a Guidelines
offense level of 30 and (with Gray’s criminal history category I) a sentencing range of 97-
121 months in prison. Gray objected, arguing that the evidence at trial did not support
such a finding; rather, Gray asserted that the District Court should adopt the lowest
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amount attributable that the jury’s verdict would support — between 500 grams and 2.5
kilograms — which would yield an offense level of 26 and a sentencing range of 63-78
months in prison. The District Court overruled this objection and, after considering
Gray’s circumstances and history, sentenced him to 97 months in prison and 5 years of
supervised release. Gray appealed.1
II.
In sentencing a defendant, a District Court must engage in a two-step inquiry.
First, the Court must correctly calculate the defendant’s recommended sentence under the
Guidelines, applying a preponderance of the evidence standard to the determination of
sentencing facts. United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). Next, the
Court must decide whether the Guidelines sentence comports with the other factors set
forth in 18 U.S.C. § 3553(a), and thus determine whether to follow the Guidelines
recommendation. Id. We review the resulting sentence for reasonableness. See United
States v. Booker, 543 U.S. 220, 261 (2005); Cooper, 437 F.3d at 326-27. In conducting
this review, we accept the District Court’s determination of sentencing facts unless it is
clearly erroneous. United States v. Irvin, 369 F.3d 284, 286 n.2 (3d Cir. 2004); see
United States v. Yeung, 241 F.3d 321, 322 (3d Cir. 2001) (noting that we “review for
clear error the District Court’s factual findings as to the quantity of drugs” attributable to
1
The District Court had jurisdiction over this case under 18 U.S.C. § 3231, and
we exercise jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742.
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the defendant for sentencing purposes).
III.
Our review of the testimony in this case leaves no doubt that the District Court’s
determination of drug quantity was not clearly erroneous. Although Gray was tried for
his role in possessing and distributing cocaine from a particular supplier (Terrence Cole),
and some of Smith’s and Gilliam’s testimony concerned cocaine from other suppliers,
their testimony clearly establishes that Gray was involved in a conspiracy to possess and
distribute at least 3.5 kilograms of cocaine. Gilliam testified, for example, about specific
occasions when he sold Gray two kilograms of Cole’s cocaine and Smith sold Gray about
1.25 kilograms. Smith related a specific conversation in which Gray tried to purchase 1.5
kilograms of cocaine, which certainly fell within the bounds of the conspiracy. In
addition to these particular instances, Smith testified that Gray would attempt to get lower
prices on cocaine “all the time,” and Gilliam stated that he sold “one or two” kilograms of
Cole’s cocaine to Gray “[o]ver 50 times.” A district court must often estimate the drug
quantity attributable to a defendant based on the totality of the evidence. See United
States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999). In this case, we find no clear error in
the Court’s conclusion that at least 3.5 kilograms of cocaine was attributable to Gray.
Beyond the proper calculation of the Guidelines range, Gray raises no other
challenges to the reasonableness of his sentence. As we noted in Cooper, “[a]ppellants
. . . bear the burden of proving the unreasonableness of sentences on appeal,” and since
Gray does not seek to establish unreasonableness on any other ground, we need not
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consider the matter further. The sentence is affirmed.
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