United States v. Curtis Gray ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4353
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CURTIS LAMONTE GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:99-cr-00298-JAB-1)
Submitted: December 26, 2013 Decided: January 8, 2014
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, Winston-Salem, North Carolina, for
Appellant. Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Lamonte Gray appeals the district court’s order
revoking his supervised release and sentencing him to sixty
months’ imprisonment. Gray argues that his revocation sentence
is procedurally unreasonable because the district court created
an unwarranted sentencing disparity when it failed to take into
account that Gray was sentenced for the original offense before
the effective date of the Fair Sentencing Act of 2010 (“FSA”),
Pub. L. No. 111-220, 124 Stat. 2372, and thus did not receive a
similar sentence to those individuals who committed the same
offense but were sentenced after the FSA. We affirm.
This court will affirm a sentence imposed after
revocation of supervised release if the sentence is within the
applicable statutory maximum and is not “plainly unreasonable.”
United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir.
2006). In determining whether a revocation sentence is “plainly
unreasonable,” the court first assesses the sentence for
unreasonableness, “follow[ing] generally the procedural and
substantive considerations that [it] employ[s] in [its] review
of original sentences[.]” Id. at 438.
A revocation sentence is procedurally reasonable if
the district court has considered both the applicable 18 U.S.C.
§ 3553(a) (2012) factors and the policy statements contained in
Chapter Seven of the Guidelines. Id. A revocation sentence is
2
substantively reasonable if the district court stated a proper
basis for concluding the defendant should receive the sentence
imposed, up to the statutory maximum. Id. Only if a sentence
is found procedurally or substantively unreasonable will this
court “then decide whether the sentence is plainly
unreasonable.” Id. at 439.
Gray argues that the district court erred in
calculating his Guidelines range by failing to take into account
that he was sentenced prior to the enactment of the FSA, which
would have lowered the grade of his original felony conviction,
and thus lowered his Guidelines sentencing range. Therefore,
Gray contends that he received a disparate sentence from other
offenders who committed the same offense but were sentenced with
the benefit of the FSA. This court has held that the FSA is not
retroactively applicable to offenders, like Gray, whose
sentencing pre-dated the effective date of the statute. United
States v. Bullard, 645 F.3d 237, 248-49 (4th Cir. 2011) (“We
agree with all eight circuits that have ruled on the issue that
the FSA contains no express statement of retroactivity, nor can
any such intent be inferred from its language.”). Thus, we
conclude the FSA had no bearing on Gray’s Guidelines range. As
to the substantive reasonableness of Gray’s sentence, we have
examined the transcript of the sentencing hearing and conclude
that the district court’s statements adequately support the
3
sentence it imposed. 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 the court and argument would not aid the
decisional process.
AFFIRMED
4