United States v. Keyes , 284 F. App'x 105 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5108
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TADASHI DEMETRIUS KEYES, a/k/a Calico,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:03-cr-00008-nkm-4)
Submitted: June 13, 2008 Decided: July 17, 2008
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Darryl A. Parker, Richmond, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Tadashi Demetrius Keyes of conspiracy to
possess with intent to distribute fifty or more grams of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (2000), and possession
of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C.A. § 924(c) (West 1999 & Supp. 2008). Keyes
was sentenced to a term of life imprisonment for the conspiracy
offense and a consecutive 120-month term of imprisonment for the
firearm offense. On appeal, we affirmed his convictions but
vacated the sentence and remanded for resentencing consistent with
United States v. Booker, 543 U.S. 220 (2005). United States v.
Keyes, 166 F. App’x 64, 67 (4th Cir. 2006) (Nos. 04-4839, 05-4216).
At resentencing, the district court sentenced Keyes to an identical
sentence. Finding no reversible error, we affirm.
Following Booker, we review a district court’s imposition
of sentence for abuse of discretion. Gall v. United States, 128
S. Ct. 586, 597 (2007); United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007). We must first ensure that the district court
committed no procedural error, such as “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.A.]
§ 3553(a) [(West 2000 & Supp. 2008)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain
- 2 -
the chosen sentence--including an explanation for any deviation
from the Guidelines range.” Gall, 128 S. Ct. at 597.
Keyes challenges the district court’s application of the
murder cross-reference in U.S. Sentencing Guidelines Manual
§§ 2A1.1, 2D1.1(d)(1) (2003). Keyes informed Gregory Felton, a
member of Keyes’ drug conspiracy, that Gerald Michie had stolen
some of their firearms. After a confrontation, Felton killed
Michie. Keyes and Felton need not have specifically agreed to kill
Michie in order for the murder cross-reference to apply to Keyes.
It was necessary only that the murder was reasonably foreseeable to
Keyes. See United States v. Montgomery, 262 F.3d 233, 250 (4th
Cir. 2001). We conclude the district court did not err when it
found Felton’s actions in response to Keyes’ information about the
stolen firearms reasonably foreseeable to Keyes. We conclude the
district court properly calculated the Guidelines range.
Next, we review the substantive reasonableness of the
sentence. Gall, 128 S. Ct. at 597. As the sentence is within the
advisory Guidelines range, we presume it is reasonable. See United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) (applying
presumption of correctness to within-Guidelines sentence); see also
Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding
presumption of reasonableness of within-Guidelines sentence).
Because Keyes has not rebutted that presumption, we find the
sentence imposed by the district court is reasonable.
- 3 -
Accordingly, we affirm Keyes’ sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 4 -