United States v. Gray

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4888
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPHINE VIRGINIA GRAY, a/k/a Josephine
Mills, a/k/a Josephine Stribbling,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:01-cr-00566-DKC)
Submitted: September 18, 2007 Decided: November 5, 2007
Before TRAXLER and SHEDD, Circuit Judges, and Norman K. MOON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Sandra Wilkinson, James M. Trusty, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Josephine Gray appeals her 480-month sentence, imposed upon
resentencing,1 of her jury convictions on all counts of an eight-
count indictment charging five counts of mail fraud in violation of
18 U.S.C. § 1341 (2000) and three counts of wire fraud in violation
of 18 U.S.C. § 1343 (2000). On appeal, Gray asserts that the
district court (1) erred in applying the cross-reference provision
of the fraud guideline, U.S.S.G. § 2F1.1, to the first-degree
murder guideline, U.S.S.G. § 2A1.1, rather than the second-degree
murder guideline, U.S.S.G. § 2A1.2, because the counts of
conviction set forth in the indictment did not establish
premeditated, first-degree murder; (2) violated the Due Process
Clause of the Fifth Amendment by finding her relevant conduct and
advisory guideline range based on a preponderance of the evidence
standard and (3) unreasonably varied from the advisory guideline
range. We affirm.
After Booker, a district court is no longer bound by the range
prescribed by the sentencing guidelines. United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). Nevertheless, a court still
must initially calculate the appropriate guidelines range, making
any appropriate factual findings. United States v. Davenport, 445
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In our earlier decision, we affirmed Gray’s conviction for
mail fraud and wire fraud, but vacated her sentence and remanded
for resentencing consistent with United States v. Booker, 543 U.S.
220 (2005). United States v. Gray, 405 F.3d 227 (4th Cir. 2005).
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F.3d 366, 370 (4th Cir. 2006). The court then considers the
resulting advisory guidelines range in conjunction with the factors
under 18 U.S.C. § 3553(a) (2000), and determines an appropriate
sentence. Davenport, 445 F.3d at 370. This Court will affirm a
post-Booker sentence if it is within the statutorily prescribed
range and is reasonable. Hughes, 401 F.3d at 546-47. A sentence
within the proper advisory Guidelines range is presumptively
reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006), cert. denied, 126 U.S. 2309, (2006); see also Rita v.
United States, --- U.S. ----, 127 S. Ct. 2456, 2462 (2007) (“[A]
court of appeals may apply a presumption of reasonableness to a
district court sentence that reflects a proper application of the
Sentencing Guidelines.”).
At the resentencing hearing, the district court applied the
cross-reference provision of the fraud guideline, U.S.S.G.
§ 2F1.1,2 to the first-degree murder guideline, U.S.S.G. § 2A1.1.
Gray concedes that the cross-reference was appropriate, as the
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The parties disagreed with the Probation Office over whether
the 2000 or 2002 Sentencing Guidelines should apply because of
changes to the fraud guideline within the 2002 Guidelines. The
district court determined that the 2002 fraud guideline, § 2B1.1,
did not violate the Ex Post Facto Clause of the Fifth Amendment,
but, in an abundance of caution, applied both the 2000 fraud
guideline, § 2F1.1, and, alternatively, the 2002 fraud guideline,
§ 2B1.1, in reaching the same sentence. At resentencing, the
district court applied only the 2000 fraud guideline, § 2F1.1,
because the 2005 fraud guideline had been modified to impose a
higher base offense level for second-degree murder, which, if
applied, could have violated the ex post facto clause.
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conduct set forth in the indictment is more accurately reflected in
a guideline other than § 2F1.1, but asserts that the counts of
conviction set forth in the indictment establish only an
intentional killing, not a premeditated one. Thus, Gray argues
that the district court should have cross-referenced to the second-
degree murder guideline, U.S.S.G. § 2A1.2, not the first-degree
guideline, U.S.S.G. § 2A1.1. First-degree murder, as defined by
federal law, includes any killing that is either willful,
deliberate, malicious, and premeditated or committed in the
perpetration of an enumerated felony. 18 U.S.C. § 1111(a) (2000);
see also U.S. v. Williams, 342 F.3d 350, 355 (4th Cir. 2003). The
question then is whether the language of the indictment clearly
articulates premeditated, first-degree murder. We find that it
does.
The indictment charges Gray, in conjunction with her co-
schemers, with knowingly and willfully devising a scheme to defraud
the life insurance companies that insured her husband, William
Gray, and intentionally causing the death of William Gray in
furtherance of that scheme. (J.A. 22, Indictment ¶¶ 14, 15.) The
indictment further charges Gray with devising a similar scheme to
defraud the life insurance companies that insured her lover,
Clarence Goode, and intentionally causing the death of Clarence
Goode in furtherance of that scheme. (J.A. 22, Indictment ¶¶ 6,
7.) As a result, the indictment clearly depicts conduct of
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premeditation and deliberation by the defendant. Therefore, we
find that the district court’s cross-reference to U.S.S.G. § 2A1.1
was appropriate because the counts of conviction within the
indictment clearly set forth premeditated murder.
Gray also argues that the district court violated the Due
Process Clause by adopting factual findings based on a
preponderance of the evidence standard. Contrary to Gray’s
argument, a district court, even after Booker, may properly make
factual findings concerning sentencing factors by a preponderance
of the evidence. See United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005).
Finally, Gray argues the district court unreasonably varied
from the advisory guidelines range when it imposed a 40-year term
of imprisonment rather than the advisory guideline range of 135-168
months. At resentencing, the district court imposed a 40-year term
of imprisonment by an upward variance as an alternative ruling in
the event that it had incorrectly applied the cross-reference to
first-degree murder. Because we previously concluded that the
district court properly applied the cross-reference to the first-
degree murder guideline, we need not address whether the district
court’s upward variance was unreasonable.
Accordingly, we affirm Gray’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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