United States v. Gray, Lawrence B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1216
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAWRENCE B. GRAY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 177—George W. Lindberg, Judge.
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ARGUED FEBRUARY 26, 2003—DECIDED JUNE 12, 2003
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Before FLAUM, Chief Judge, and EASTERBROOK and
KANNE, Circuit Judges.
KANNE, Circuit Judge. Drug Enforcement Agency (“DEA”)
Agents David Brazao and Dorothy Sells, believing that
they had just witnessed Lawrence B. Gray selling drugs
from the front seat of his car, followed Gray’s vehicle
to a Dominick’s grocery store and parked behind him.
The agents approached Gray’s car and, displaying their
badges and announcing “Police DEA,” told him to get out
of his vehicle. When he did not do so, the agents simulta-
neously opened the two front doors of Gray’s automobile.
Shortly after they opened the doors Gray placed his car
in reverse and hit the gas pedal. One of the open car doors
hit Agent Brazao and knocked him to the ground.
2 No. 02-1216
Gray sped out of the parking lot, and a high-speed chase
ensued. Eventually, the agents arrested Gray in a McDon-
ald’s parking lot. Following the arrest, they recovered a bag
that Gray had thrown out of the car window during the
chase. It was subsequently determined that the bag con-
tained 37.5 grams of marijuana. A later search of Gray’s
apartment yielded an additional 55 grams of marijuana.
The government filed a three-count superseding indict-
ment charging Gray with (1) assaulting a DEA agent in
violation of 18 U.S.C. § 111, (2) possessing 38 grams of
marijuana with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1), and (3) possessing 55 grams of marijuana with
intent to distribute also in violation of 21 U.S.C. § 841(a)(1).
Gray pleaded guilty to all three counts in the indictment
without the benefit of a plea agreement.
At sentencing, the district court determined based on
the facts and the Presentence Report (“PSR”) that the
combined adjusted offense level for all three counts under
the Sentencing Guidelines was 26 and that Gray’s crimi-
nal history category was III. This resulted in a sentence
range of 78 to 97 months imprisonment. Accordingly, the
court sentenced Gray to 87 months on each count, with the
sentences to run concurrently. Neither counsel for the
defendant nor the government mentioned the relevant
statutory maximums at the sentencing.
Now on appeal, Gray argues that his sentence of 87
months on each count exceeds the statutory maximum
sentence for each individual crime of conviction. Because
he did not raise this issue below, we review it only for
plain error. United States v. Bjorkman, 270 F.3d 482, 492
(7th Cir. 2001). To reverse under the plain error standard
of review, we must find that the error (1) was plain, (2)
affected substantial rights, which in most cases means that
the error was prejudicial, and (3) “seriously affect[ed] the
fairness, integrity or public reputation of judicial proceed-
No. 02-1216 3
ings.” United States v. Olano, 507 U.S. 725, 733-36 (1993)
(quotation omitted).
Count One of the indictment charged Gray with forcible
assault of a drug enforcement officer in violation of 18
U.S.C. § 111 (2000).1 The indictment, however, did not
specify which of § 111’s two subsections Gray was charged
with violating. Subsection (a) provides a maximum penalty
of 36 months for anyone that “forcibly assaults, resists,
opposes, impedes, intimidates, or interferes with [a DEA
officer] while engaged in . . . the performance of official
duties.” 18 U.S.C. § 111(a) (2000). Subsection (b) provides
a maximum penalty of 120 months for anyone that in
violating subsection (a) “uses a deadly weapon . . . or inflicts
bodily injury.” 18 U.S.C. § 111(b) (2000).
It appears from the sentencing transcript and the PSR
that both parties and the district court assumed that
Gray had pleaded guilty to a violation of § 111(b), and the
district court sentenced him accordingly under subsec-
tion (b)’s maximum of 120 months. The problem with this
assumption is that Count One of the indictment did not
charge Gray with use of a deadly weapon or with inflicting
bodily injury; therefore, it must be assumed that the
indictment charged Gray with a violation of subsection (a)
rather than subsection (b). Gray therefore pleaded guilty
only to a violation § 111(a), which both parties agree carries
a maximum penalty, in this case, of 36 months. The
sentence of 87 months that Gray received on Count One
1
We note that 18 U.S.C. § 111 was amended in 2002 to increase
the maximum punishments available under the statute: the
maximum under subsection (a) for assaults other than “simple
assaults” was increased from 36 months to 96 months imprison-
ment, and the maximum under subsection (b) was increased
from 120 months to 240 months imprisonment. Gray was sen-
tenced prior to the 2002 amendment, so we apply the pre-2002
maximums.
4 No. 02-1216
exceeded this 36 month statutory maximum and thus was
in error. The government concedes as much.
Similarly, the government concedes that the 87 month
sentences that Gray received on each of the drug counts
exceeded the 60 month statutory maximum provided by
21 U.S.C. § 841(b)(1)(D) (2000).
The government argues, however, that these errors do
not, under plain error review, warrant a remand for
resentencing because they did not affect the fairness,
integrity, or public reputation of the proceedings. We agree.
This Court has held, and Gray acknowledges, that no
reversal is warranted under the plain error standard
when the sentence imposed does not exceed the combined
statutory maximum achievable by running the sentences
consecutively. See United States v. Parolin 239 F.3d 922,
930 (7th Cir. 2001). In this case, the consecutive stat-
utory maximum of the three counts for which Gray was
convicted was 156 months—36 months for the assault and
60 months for each of the drug charges. Gray actually
received a sentence of only 87 months, well below the total,
consecutive maximum.
Moreover, § 5G1.2(d) of the Sentencing Guidelines states:
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on one or
more of the other counts shall run consecutively, but
only to the extent necessary to produce a combined
sentence equal to the total punishment.
U.S.S.G. § 5G1.2(d) (2000). We have refused to reverse
a defendant’s sentence under plain error review if on
remand the district court would impose the same total
sentence by imposing the individual sentences consecu-
tively rather than concurrently to achieve the total pun-
ishment as instructed in § 5G1.2(d). See United States
v. Martinez, 289 F.3d 1023, 1027 (7th Cir. 2002).
No. 02-1216 5
Under the Guidelines, Gray’s total punishment, based
on his adjusted combined offense level of 26 and his crimi-
nal history category of III, falls within a range of 78 to
97 months. The drug convictions, the counts with the
highest statutory maximums, carry statutory maximum
sentences of 60 months—below Gray’s total punishment.
Therefore, even if we were to remand for resentencing,
§ 5G1.2(d) would instruct the district court to impose
the sentences consecutively to the extent necessary to
achieve the total punishment; thus, Gray would receive
the same sentence as before.
Consequently, we find that the sentencing errors did not
affect the fairness, integrity, or public reputation of the
proceedings. Gray’s sentence is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-12-03