United States v. Dublin , 189 F. App'x 151 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4754
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD DUBLIN,
Defendant - Appellant.
No. 05-4766
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARION MAYS, a/k/a Mojo,
Defendant - Appellant.
No. 05-4782
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRELL TODD MAYS,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(CR-03-834; CR-03-726)
Submitted: July 5, 2006 Decided: July 13, 2006
Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant
Richard Dublin; Mark W. Hardee, Columbia, South Carolina, for
Appellant Marion Mays; James P. Rogers, Columbia, South Carolina,
for Appellant Darrell Todd Mays. Reginald I. Lloyd, United States
Attorney, Mark C. Moore, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Richard Dublin, Marion Mays, and Darrell Mays appeal the life
sentences they received after pleading guilty to drug trafficking
and conspiracy charges that involved the killing of James Barrow,
a confidential informant working with law enforcement officers in
Aiken, South Carolina. Finding no reversible error, we affirm.
I.
After Dublin was arrested on drug charges, police became
suspicious that he might have information concerning the
disappearance of Barrow. Dublin agreed to plead guilty to
possession with intent to distribute 50 grams or more of crack, in
violation of 21 U.S.C. § 841(a)(1), and, as part of his plea
agreement, agreed to cooperate with the government by providing
truthful information about his drug activities and what he knew
about Barrow’s disappearance. Dublin understood that if he
breached the plea agreement by failing to be truthful, the
government could seek the maximum sentence of life in prison and
use against him all the information he provided.
Following his plea, Dublin gave a series of interviews about
the disappearance of Barrow, but, each time, his account changed.
A consistent theme, however, was that Marion Mays and Darrell Mays
were also involved. Although the government notified Dublin that
he was in breach of his plea agreement, prosecutors wanted to call
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him as a witness at the trial of the Mays brothers, who were
charged with a variety of drug and firearms counts, including the
drug-related murder of Barrow. However, because the government
would make no promises to Dublin about the sentence it would
recommend, Dublin refused to testify.
Shortly after their trial commenced in January 2005, the Mays
brothers decided to plead guilty. The Mays brothers agreed to
provide truthful information to the government and to submit to
polygraph examinations. In turn, the government agreed not to use
against them any incriminating information they provided, unless
the information was already in the government’s possession or they
breached the plea agreement or committed perjury. The Mays
brothers also acknowledged that if they did not pass their
polygraphs examinations to the satisfaction of the government, the
government’s obligations would become void. The Mays brothers each
acknowledged that their sentences would ultimately be determined by
the district court.
The Mays brothers both admitted that they were not completely
truthful in their initial interviews concerning the disappearance
of Barrow. In fact, when agents picked up the brothers for their
first interviews, they noticed Marion with a letter that he later
admitted was intended to tell Darrell what to say. Additionally,
Marion’s polygraph examination showed inconclusive results
concerning the truthfulness of his account about Barrow’s body and
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results indicating deception concerning an offer he allegedly made
to a co-defendant to kill a government informant and the amount of
drugs he gave that co-defendant.
Though the defendants’ stories changed from interview to
interview, grisly details of the Barrow murder finally emerged.
The defendants eventually each admitted their role in Barrow’s
murder. According to their accounts, they ambushed Barrow, bound
him with duct tape, placed him in the trunk of a car, and took him
to the woods where they each shot him. Darrell Mays disposed of
Barrow’s truck, and Marion Mays returned to the scene with a
chainsaw, where he dismembered Barrow’s body. Marion Mays then
removed Barrow’s remains, poured acid on them, and burned them.
At sentencing, the district court found that Dublin and Marion
Mays had breached their plea agreements by providing untruthful
information. When the district court heard evidence concerning the
sentencing issues, the government called Darrell Mays to testify.
On the stand, Darrell Mays admitted his role in the murder, but, in
what the government contends was an effort to avoid inculpating his
brother, claimed to have memory problems. He stated that Dublin
was behind the murder and that he did not believe his brother was
involved. When confronted with his prior, inconsistent statements
about the murder, he claimed that he lied when giving them. He
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then admitted that he breached his agreement to provide truthful
information.1
As to each defendant, the district court considered evidence
of the drug transactions and the drug-related murder of Barrow.
The district court sentenced each defendant to life in prison, and
Marion Mays to thirty years each for three additional counts
against him. The defendants appeal their sentences.
II.
We review sentences for unreasonableness, though
“reasonableness is not measured simply by whether the sentence
falls within the statutory range, but by whether the sentence was
guided by the Sentencing Guidelines and by the provisions of §
3553(a).” United States v. Green, 436 F.3d 449, 456 (4th Cir.),
cert. den., 164 L. Ed. 2d 828 (2006). We review de novo purely
legal questions and we review findings of fact for clear error.
See id. “An error of law or fact can render a sentence
unreasonable.” Id.The defendants claim that the district court should not have
sentenced them for murder when they had not been convicted by a
jury of murder. We note first that this argument mischaracterizes
what occurred in district court. Each defendant pleaded guilty to
1
Darrell Mays had agreed both in his plea agreement and in a
later proffer agreement to provide truthful information.
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and was convicted of at least one drug-related charge that carried
a possible sentence of life in prison. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846. The defendants, therefore, were not “sentenced
for murder,” but were sentenced for violating our nation’s drug
laws. Their role in the drug-related killing of a government
informant simply provided the district court greater discretion to
sentence them to the maximum punishment authorized by law for these
drug-related charges, namely, life in prison.
Turning to the reasonableness of the sentences, we note that,
after the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), a sentencing court is no longer bound by the range
prescribed by the sentencing guidelines. See United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in determining
a sentence post-Booker, sentencing courts are still required to
calculate and consider the applicable guideline range as well as
the factors set forth in 18 U.S.C. § 3553(a), making all factual
findings appropriate for that determination. See id. If the
sentence imposed is within the properly calculated guideline range,
it is presumptively reasonable. See Green, 436 F.3d at 456.
Under our now advisory sentencing guidelines, where a
defendant is convicted of violating 21 U.S.C. §§ 841(a)(1) or 846
and a “victim was killed under circumstances that would constitute
murder under 18 U.S.C. § 1111 had such killing taken place within
the territorial or maritime jurisdiction of the United States,” the
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sentencing court should look to the base offense level used for
first degree murder, which is 43. See U.S. Sentencing Guidelines
Manual §§ 2A1.1, 2D1.1(d)(1) (2004). Regardless of the defendant’s
criminal history category, the advisory sentencing guideline range
for a base offense level of 43 is life in prison. See id. at Ch.
5, Pt. A.
Here, the district court had adequate evidence before it,
including the admissions of each defendant, to conclude that the
defendants were directly involved in the drug-related killing of
Barrow, a confidential government informant. The district court
was free to use the defendants’ admissions of their roles in
Barrow’s killing, as there was adequate evidence to show that each
defendant breached his agreement to provide truthful information.
For example, there was sufficient evidence to conclude that Dublin
provided a series of differing stories about his role in the murder
and was notified by the government that he was in breach of his
agreement; that Marion Mays was not forthcoming with all of the
details concerning his role in the murder and failed a polygraph
test; and that Darrell Mays was not completely truthful in his
first interview and lied to investigators about his brother’s role
in the murder. As a result, the district court was permitted to
use the defendants’ admissions, weigh all the evidence, and apply
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the murder cross reference to arrive at an advisory guideline range
of life in prison for each defendant.2
Darrell Mays further argues that the district court failed to
provide an adequate statement of reasons for his sentence under 18
U.S.C. § 3553(a). We note initially that, as described above,
Darrell Mays’ sentence fell within the advisory guideline range and
was, therefore, presumed to be reasonable. See Green, 436 F.3d at
456. Furthermore, the district court was not required to discuss
every § 3553(a) factor on the record. See United States v. Eura,
440 F.3d 625, 632 (4th Cir. 2006). Moreover, when the district
court conducted its proportionality analysis under United States v.
Kratsas, 45 F.3d 63, 66 (4th Cir. 1995), it explained that Darrell
Mays’ offense was “extremely grave,” that he was involved in a
conspiracy with one of South Carolina’s major cocaine and crack
suppliers, and that he played a role in the drug-related murder of
a confidential informant. The district court concluded that life
in prison was not disproportionate in comparison with other
sentences under the guidelines, and that state statutes in our
circuit disclose the existence of similarly severe sentencing for
narcotics violations of this magnitude. J.A. 587. These findings
under the Kratsas proportionality analysis touch on many of the
2
For these reasons, we reject Darrell Mays’ separate argument
that the district court erred in concluding that he breached his
plea agreement.
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factors in § 3553(a) and support the reasonableness of Darrell
Mays’ sentence.
III.
For the foregoing reasons, we affirm the defendants’
sentences. 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
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