United States v. Michael Lofton, Jr. ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4258
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL A. LOFTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:19-cr-00016-D-1)
Submitted: February 25, 2022 Decided: May 4, 2022
Before WYNN, DIAZ, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC,
Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, David A. Bragdon, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael A. Lofton, Jr., appeals his jury convictions and 92-month sentence for
conspiracy to distribute and possess with intent to distribute 28 grams or more of cocaine
base and a quantity of marijuana, in violation of 21 U.S.C. §§ 841(a), 846; distribution and
possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); and
distribution and possession with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1). On appeal, he argues that the district court violated his rights under the Speedy
Trial Act (“STA”), 18 U.S.C. § 3161, and erred in applying a sentencing enhancement for
possession of a firearm under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2018).
We affirm.
Lofton first asserts that the district court erred in denying his motion to dismiss the
charges against him pursuant to the STA. We review the district court’s interpretation of
the STA de novo and its underlying factual findings for clear error. United States v.
Rodriguez-Amaya, 521 F.3d 437, 440 (4th Cir. 2008). When a defendant pleads not guilty,
the STA requires that the trial begin within 70 days of the indictment’s filing or the
defendant’s initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1). However, the
STA excludes certain periods of time from the 70-day count, including periods of delay
“resulting from any pretrial motion,” id. § 3161(h)(1)(D), or “a continuance . . . granted on
the basis of [the court’s] findings that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a speedy trial,” id.
§ 3161(h)(7)(A). Having reviewed the record, we conclude that, after excluding periods
of delay caused by the parties’ filing of pretrial motions and the district court’s grant of a
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continuance with Lofton’s consent, see United States v. Keith, 42 F.3d 234, 240 (4th Cir.
1994), Lofton’s trial commenced within 70 days of his initial appearance. Accordingly,
the district court correctly determined that Lofton’s rights under the STA were not violated.
Next, Lofton argues that the district court erred in applying a sentencing
enhancement for possession of a firearm during a drug trafficking crime under USSG
§ 2D1.1(b)(1). Rather than evaluating the merits of Lofton’s challenge to the calculation
of the Guidelines range, “we may proceed directly to an assumed error harmlessness
inquiry.” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal
quotation marks omitted). “To apply this assumed error harmlessness inquiry we require
(1) knowledge that the district court would have reached the same result even if it had
decided the [G]uidelines issue the other way and (2) a determination that the sentence
would be reasonable even if the [G]uidelines issue had been decided in the defendant’s
favor.” United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017) (internal quotation
marks omitted). The claimed error will be deemed harmless only when we are “certain”
that these requirements are met. United States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012).
Here, the first part of the inquiry is satisfied because the “district court has expressly
stated in a separate and particular explanation that it would have reached the same result”
even if it had erred in applying the Guidelines. Gomez-Jimenez, 750 F.3d at 383. With
respect to the second step of the analysis, we review a sentence for substantive
reasonableness by “examin[ing] the totality of the circumstances to see whether the
sentencing court abused its discretion in concluding that the sentence it chose satisfied the
standards set forth in [18 U.S.C.] § 3553(a).” United States v. Mendoza-Mendoza, 597
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F.3d 212, 216 (4th Cir. 2010). Here, the district court appropriately balanced Lofton’s
offense conduct, characteristics, and recidivism with the mitigating factors he presented,
and explained that the sentence imposed was necessary to promote respect for the law,
incapacitate Lofton, and provide deterrence. In light of the court’s thorough discussion of
the § 3553(a) factors, we conclude that Lofton’s sentence is reasonable. Accordingly, any
procedural error the court made in applying the disputed sentencing enhancement was
harmless.
We therefore affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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