United States v. Derrick Gray ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4425
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK LAMONT GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:11-cr-00731-RMG-1)
Submitted: December 16, 2013 Decided: January 7, 2014
Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
T. Kirk Truslow, T. KIRK TRUSLOW, P.A., North Myrtle Beach,
South Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Lamont Gray pled guilty, pursuant to a written
plea agreement, to possessing a firearm and ammunition after
being convicted of a felony, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (2012) (“Count Nine”); possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2012) (“Count Ten”); and using and
carrying a firearm during and in relation to, and possessing a
firearm in furtherance of, a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (2012) (“Count
Eleven”). The district court initially sentenced Gray to an
aggregate term of 131 months’ imprisonment, consisting of
seventy-one months on Counts Nine and Ten, concurrent, and a
sixty-month consecutive term on Count Eleven.
In Gray’s first appeal, which was taken pursuant to
Anders v. California, 386 U.S. 738 (1967), we identified a
potentially meritorious issue related to the calculation of
Gray’s criminal history score, and we directed the parties to
file supplemental briefs on that issue. The Government moved to
vacate Gray’s sentence and to remand his case to the district
court to correct the error. Counsel for Gray agreed to the
remand, and a remand was ordered.
On remand, the district court acknowledged the error,
which resulted in a reduction in Gray’s criminal history
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category. Gray’s revised Guidelines range for Counts Nine and
Ten was forty-six to fifty-seven months’ imprisonment. The
sixty-month consecutive term for Count Eleven was unaffected by
the error. After hearing from the parties, the district court
imposed an aggregate 117-month sentence.
On appeal, counsel has filed a brief pursuant to
Anders, certifying that there are no nonfrivolous grounds for
appeal, but asking us to review Gray’s convictions and the
reasonableness of the sentence. Gray filed a pro se
supplemental brief in which he contends that he is entitled to
relief pursuant to the Guidelines amendments enacted subsequent
to the passage of the Fair Sentencing Act of 2010 (“FSA”), and
argues that there was insufficient evidence to support a
conviction on Count Eleven. The Government has declined to file
a response brief. For the reasons that follow, we affirm.
Because Gray did not move in the district court to
withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To prevail under this standard, Gray
must establish that an error occurred, that this error was
plain, and that it affected his substantial rights. United
States v. Massenburg, 564 F.3d 337, 342–43 (4th Cir. 2009). Our
review of the record establishes that the district court fully
complied with the mandates of Rule 11, ensuring that Gray’s plea
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was knowing and voluntary, and supported by an independent basis
in fact. We therefore affirm Gray’s convictions. 1
We review Gray’s sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 46, 51 (2007). This review requires consideration of
both the procedural and substantive reasonableness of the
sentence. Id. at 51. We first assess whether the district
court properly calculated the advisory Guidelines range,
considered the factors set forth in 18 U.S.C. § 3553(a) (2012),
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49–51; see
United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir. 2010).
If there is no procedural error, we review the
substantive reasonableness of the sentence, “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 § 3553(a).” United
States v. Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
If the sentence is within the defendant’s properly calculated
Guidelines range, we apply a presumption of substantive
reasonableness. United States v. Bynum, 604 F.3d 161, 168-69
1
We reject as contrary to his sworn testimony at the Rule
11 hearing Gray’s claim that there was insufficient evidence to
support a conviction on Count Eleven.
4
(4th Cir. 2010); see Rita v. United States, 551 U.S. 338, 347
(2007) (permitting appellate presumption of reasonableness for
within-Guidelines sentence).
We have thoroughly reviewed the record and conclude
that the sentence is both procedurally and substantively
reasonable. We discern no error in the district court’s
computation of Gray’s Guidelines range, 2 the opportunities the
court provided to Gray, his counsel, and his mother to present
mitigation testimony, or the court’s explanation of the sentence
imposed by reference to the relevant § 3553(a) factors. In
addition to noting its overall consideration of the sentencing
factors, the district court opined that the aggregate 117-month
sentence was appropriate given the seriousness of Gray’s offense
conduct. This conduct included multiple instances in which Gray
possessed firearms in conjunction with his admitted drug
dealing, and the need to impose a just punishment that would
protect the public from any such future criminal conduct by
Gray. Finally, we discern no basis in the record to overcome
the presumption of substantive reasonableness accorded the
within-Guidelines sentence the district court imposed.
2
Gray’s claim that he should be resentenced pursuant to the
Guidelines amendments enacted in the wake of the passage of the
FSA is without merit. The post-FSA Guidelines were in effect at
Gray’s initial sentencing in March 2012 and at his resentencing
in March 2013.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
We deny as moot Gray’s pro se motion for the appointment of new
counsel. This Court requires that counsel inform Gray, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Gray requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Gray. 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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