United States v. Darius Galloway , 497 F. App'x 297 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS LAMONT GALLOWAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00036-F-1)
Submitted: November 7, 2012 Decided: November 16, 2012
Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darius Lamont Galloway was convicted by a jury of
possession with intent to distribute at least five but less than
fifty grams of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006) (Count One); possession of a firearm by a felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924 (2006) (Count Two); and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2006) (Count Three).
The district court sentenced Galloway as a career offender to a
total sentence of 360 months’ imprisonment. In Galloway’s prior
appeal, we affirmed his convictions, vacated his sentence, and
remanded for resentencing in light of United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc). United States v.
Galloway, 459 F. App’x 232 (4th Cir. 2011) (No. 09-4843), cert.
denied, 132 S. Ct. 2699 (2012).
On remand, the district court held Galloway
accountable for 4.5 ounces of cocaine, 50.1 grams of crack, and
63.1 grams of marijuana. The court sentenced Galloway to a
within-Guidelines sentence of 110 months’ imprisonment on Counts
One and Two concurrent, followed by a consecutive sentence of
sixty months’ imprisonment on Count Three, yielding a total
amended sentence of 170 months’ imprisonment. On appeal,
Galloway argues that the district court erroneously relied upon
acquitted conduct in determining the drug quantities
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attributable to him for sentencing purposes. In addition,
Galloway contends that the Government failed to establish the
drug quantities for purposes of relevant conduct by a
preponderance of the evidence.
We review a sentence for procedural and substantive
reasonableness, applying an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 41 (2007). In determining the
procedural reasonableness of a sentence, we consider whether the
district court properly calculated the Guidelines range, treated
the Guidelines as advisory, considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence. Gall, 552
U.S. at 51.
We reject Galloway’s argument that the district court
erroneously considered acquitted conduct in determining his
advisory Guidelines range. The Sentencing Guidelines require a
sentencing court to consider relevant conduct in calculating a
defendant’s advisory Guidelines range, including “all acts and
omissions . . . that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” U.S.
Sentencing Guidelines Manual (“USSG”) § 1B1.3(a)(2) (2011);
United States v. Hayes, 322 F.3d 792, 802 (4th Cir. 2003)
(noting that a “court has no discretion to disregard relevant
conduct” when calculating offense level). The sentencing court
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is not “bound by the evidence presented at trial when
determining drug quantity or other relevant conduct,” United
States v. Young, 609 F.3d 348, 357 (4th Cir. 2010), and may
“consider acquitted conduct in establishing drug amounts for the
purpose of sentencing, so long as the amounts are established by
a preponderance of the evidence.” United States v. Perry, 560
F.3d 246, 258 (4th Cir. 2009).
Galloway next asserts that the Government failed to
establish the drug quantities attributed to him by a
preponderance of the evidence. We review the district court’s
calculation of the quantity of drugs attributable to a defendant
for sentencing purposes for clear error. United States v.
Fullilove, 388 F.3d 104, 106 (4th Cir. 2004). Clear error
occurs “when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United
States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008) (citation
and internal quotation marks omitted). In calculating drug
amounts for sentencing purposes, “a sentencing court may give
weight to any relevant information before it, including
uncorroborated hearsay, provided that the information has
sufficient indicia of reliability to support its accuracy.”
United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010).
Our review of the record confirms that the Government
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established the relevant drug quantities by a preponderance of
the evidence.
We therefore affirm the district court’s judgment. We
deny Galloway’s pro se motion for leave to file a supplemental
brief. 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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