United States v. Jeffrey Gregory , 639 F. App'x 913 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4222
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY GREGORY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cr-00334-JFM-1)
Submitted: January 20, 2016 Decided: February 4, 2016
Before NIEMEYER and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Michael C. Hanlon, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Between 2008 and 2009, Jeffrey Gregory, along with a
coconspirator, engaged in a series of straw firearm purchases.
Because Gregory was a convicted felon, he was unable to legally
purchase the firearms. Gregory’s coconspirator filled out the
paperwork required to purchase the firearms, then transferred
the firearms to Gregory. As a result of these straw purchases
and other illegal activities, Gregory was indicted for numerous
charges in federal court. In 2010, pursuant to a plea
agreement, Gregory pled guilty to possession of a Ruger .45
caliber firearm by a felon, in violation of 18 U.S.C. § 922(g)
(2012), and possession of an Intratec 9mm handgun in furtherance
of drug trafficking, in violation of 18 U.S.C. § 924(c) (2012).
In 2011, while in federal custody, Gregory was arrested by
state authorities and charged with the 2009 first-degree murder
of Carlos Botello. The state prosecution was eventually
dismissed with prejudice because the state violated the
Interstate Agreement on Detainers Act. After the dismissal of
the state case, in 2013 the federal government obtained an
indictment against Gregory, charging him with, inter alia,
making a false statement in connection with the acquisition of
the Ruger .45 caliber handgun, in violation of 18 U.S.C.
§ 922(a)(6) (2012), and possession of a separate firearm by a
felon, in violation of 18 U.S.C. § 922(g).
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Gregory moved to dismiss these counts based on alleged
Fifth Amendment due process and double jeopardy violations.
After the district court denied Gregory’s motions, Gregory
entered into a conditional Rule 11(c)(1)(C) plea agreement with
the Government, wherein he reserved his right to appeal the
denial of his motions to dismiss. On appeal, Gregory argues
that his Fifth Amendment due process rights were violated by the
lengthy preindictment delay that occurred. He further argues
that the Fifth Amendment Double Jeopardy Clause was violated by
his conviction for false statements in connection with the
acquisition of the Ruger handgun. For the reasons that follow,
we affirm.
We review due process claims de novo. United States v.
Westbrooks, 780 F.3d 593, 595 (4th Cir. 2015). The Fifth
Amendment Due Process Clause requires dismissal of an indictment
if it is shown that a “pre-indictment delay . . . caused
substantial prejudice to [a defendant’s] rights to a fair trial
and that the delay was an intentional device to gain tactical
advantage over the accused.” United States v. Marion, 404 U.S.
307, 324 (1971). We conduct “a two-pronged inquiry to evaluate
a defendant’s claim that pre-indictment delay violated his right
to due process.” United States v. Uribe-Rios, 558 F.3d 347, 358
(4th Cir. 2009). First, we examine “whether the defendant has
satisfied his burden of proving actual prejudice” and, if so, we
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consider “the government’s reasons for the delay, balancing the
prejudice to the defendant with the Government’s justification
for delay.” Id. (internal quotation marks omitted).
In evaluating the first prong, we are mindful that the
defendant bears a “heavy burden” because he must demonstrate
“actual prejudice, as opposed to mere speculative prejudice,”
and must “show that any actual prejudice was substantial—that he
was meaningfully impaired in his ability to defend against the
state's charges to such an extent that the disposition of the
criminal proceeding was likely affected.” United States v.
Shealey, 641 F.3d 627, 633-34 (4th Cir. 2011) (internal
quotation marks omitted).
Gregory does not point to any trial prejudice to support
his due process claim. Rather, he argues that the preindictment
delay harmed his ability to negotiate concurrent sentences on
his various federal charges. Gregory argues that, in light of
the importance of plea bargaining in the resolution of federal
criminal proceedings, this court should recognize such prejudice
as sufficient to support a due process claim premised on
preindictment delay. We have previously addressed, and
rejected, such arguments. See Uribe-Rios, 558 F.3d at 358.
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To the extent that Uribe-Rios is factually distinguishable
from Gregory’s case, we find those distinctions to be irrelevant
to the prejudice analysis. Moreover, the cases cited by Gregory
to support his argument that Uribe-Rios is outdated are Sixth
Amendment rather than Fifth Amendment cases, and are therefore
of little help in evaluating claims of preindictment delay. We
therefore conclude that Gregory’s due process claim is without
merit.
Double jeopardy claims are likewise reviewed de novo.
United States v. Studifin, 240 F.3d 415, 418 (4th Cir. 2001).
The Double Jeopardy Clause prohibits “successive prosecutions
for the same offense as well as the imposition of cumulative
punishments for the same offense in a single criminal trial.”
United States v. Shrader, 675 F.3d 300, 313 (4th Cir. 2012)
(internal quotation marks omitted). Where a case involves
multiple charges, the Double Jeopardy Clause is not offended
where each charge requires proof of a distinct element. See
Blockburger v. United States, 284 U.S. 299, 304 (1932); United
States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010).
Gregory acknowledges that, applying the Blockburger test,
his second prosecution is permissible. He therefore argues that
we should look instead to the double jeopardy test applied in
Jordan v. Virginia, 653 F.2d 870, 873 (4th Cir. 1980), and
Rashad v. Burt, 108 F.3d 677 (6th Cir. 1997). We have
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previously repudiated these cases, United States v. Williams,
155 F.3d 418, 420-21 (4th Cir. 1998), and find no reason to
revisit that repudiation. Our decision in Williams likewise
forecloses Gregory’s remaining double jeopardy arguments. Id.
at 420-22.
Accordingly, we 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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