United States v. Daniel Ray , 772 F.3d 824 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1711
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Daniel T. Ray
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: November 11, 2014
Filed: November 18, 2014
____________
Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
____________
RILEY, Chief Judge.
A grand jury indicted Daniel T. Ray for possessing with intent to distribute at
least five grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(viii), and possessing a firearm in furtherance of this drug trafficking crime
in violation of 18 U.S.C. § 924(c). While on pretrial release, Ray was to reside at a
residential drug treatment facility and follow facility rules. On October 17, 2013, at
Ray’s request, the magistrate judge ordered Ray to appear for a change-of-plea
hearing on November 7, 2013. Three days before the hearing, Ray slipped away from
the treatment facility after curfew and did not return. With Ray still missing on
November 6, 2013, the magistrate judge issued a warrant for his arrest. Ray did not
appear at the November 7 hearing. Arrested the next day, Ray ultimately pled guilty
to both counts. The district court1 sentenced Ray to 160 months imprisonment (100
months for methamphetamine possession and a consecutive 60 months for firearm
possession). Ray appeals his sentence.
I. DISCUSSION
A. Obstruction-of-Justice Enhancement
Ray argues the district court procedurally erred by applying a two-level
obstruction-of-justice enhancement in United States Sentencing Guidelines (U.S.S.G.
or Guidelines) § 3C1.1. The enhancement applies to, among other things, “escaping
or attempting to escape from custody before trial or sentencing; or willfully failing to
appear, as ordered, for a judicial proceeding.” U.S.S.G. § 3C1.1 cmt. n.4(E). By
absconding from the drug treatment facility in violation of his pretrial release
conditions, Ray escaped “from custody” within the meaning of U.S.S.G. § 3C1.1. See
Hayes v. United States, 281 F.3d 724, 725 (8th Cir. 2002).
Ray also satisfied § 3C1.1 by failing to appear at his court ordered change-of-
plea hearing. Ray claims he was at the courthouse on the day of the hearing and left
without appearing in court. He argues his nonappearance “did not cause the court . . .
any material delay or expense.” But unlike United States v. Peters, 394 F.3d 1103
(8th Cir. 2005), to which Ray compares his case, Ray’s plea hearing was scheduled
weeks in advance, he gave no explanation for his absence, and he never requested a
continuance. Compare Peters, 394 F.3d at 1106 (excusing the defendant’s failure to
appear at the hearing scheduled on short notice where the defendant had informed her
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
-2-
attorney of her inability to attend the hearing, leading her attorney to move
successfully for a continuance). Ray’s plea hearing was cancelled and rescheduled
because Ray chose not to attend, leaving the magistrate judge sitting on the bench
waiting for Ray to appear. Ray’s actions also forced the government to expend time
and manpower to apprehend him and required an additional revocation hearing before
the rescheduled plea hearing. The delay and extra work were material. The district
court did not err in applying U.S.S.G. § 3C1.1.
B. Sentence Reasonableness
Challenging only the 100 months in prison he received for possession of
methamphetamine, Ray urges the district court gave “too little weight to the traumatic
effects of his dysfunctional upbringing” and “overestimat[ed] the likelihood Ray
would commit future crimes.” Ray’s calculated advisory Guidelines range was 100
to 125 months (offense level 25, category V). “A sentence,” like Ray’s, “which falls
within the guideline range is presumed to be reasonable, and district courts are
allowed ‘wide latitude to weigh the § 3553(a) factors in each case and assign some
factors greater weight than others in determining an appropriate sentence.’” United
States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014) (quoting United States v.
Maxwell, 664 F.3d 240, 247 (8th Cir. 2011)). Our careful review of the record shows
Ray cannot overcome this presumption, and the district court did not abuse its
considerable discretion. See Gall v. United States, 552 U.S. 38, 51-52 (2007)
(standard of review). The district court weighed the § 3553(a) factors and fairly
reasoned as follows:
The defendant . . . [has] been a troubled young man, young boy, for a
very long time. There is a very substantial risk that this young man will
commit additional crimes. Therefore, a long prison sentence . . . taking
him out of circulation for a long period of time, I believe, is required.
-3-
II. CONCLUSION
We affirm.
______________________________
-4-