USA v. Deandre Gray

Filing

Opinion issued by court as to Appellant Deandre Marqui Gray. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 17-10524

Date Filed: 10/03/2017

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10524
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00303-JDW-JSS-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEANDRE MARQUI GRAY,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 3, 2017)
Before HULL, WILSON, and JORDAN, Circuit Judges.
PER CURIAM:

Case: 17-10524

Date Filed: 10/03/2017

Page: 2 of 3

DeAndre Gray appeals the 240-month sentence the district court imposed
after he pled guilty to one count of conspiracy to possess with intent to distribute 5
kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Mr. Gray argues
that the district court improperly sentenced him as a career offender under
U.S.S.G. § 4B1.1(b)(1) because it relied on three prior Texas convictions that the
Fifth Circuit recently held do not qualify as controlled substance offenses under the
Sentencing Guidelines. See United States v. Tanksley, 848 F.3d 347, 352 (5th
Cir.), supplemented, 854 F.3d 284 (5th Cir. 2017).
At the time of his sentencing, Mr. Gray failed to object to the district court’s
application of the career-offender enhancement under the Sentencing Guidelines,
so we review his challenge for plain error.

Under that highly circumscribed

review, there can be no plain error unless, at the time of the district court’s ruling,
controlling precedent from the Supreme Court or this Circuit directly established
that the district court’s ruling was erroneous. See United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003).
Mr. Gray failed to establish plain error because he has not cited a single case
from the Supreme Court or this Circuit directly holding that the Texas convictions
at issue on this appeal do not qualify as controlled substance offenses under the
Sentencing Guidelines.

Indeed, by relying almost exclusively on Tanksley,

Mr. Gray all but concedes that no binding precedent existed to establish plain error.

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Case: 17-10524

Date Filed: 10/03/2017

Page: 3 of 3

Mr. Gray, moreover, has not shown that he was prejudiced by any error
because the district court sentenced him to 240 months’ imprisonment, which is
within the guidelines range (235–293 months) he would have been subject to but
for his career offender status, and he has not demonstrated that the district court
would have imposed an even lower sentence.
Accordingly, we affirm Mr. Gray’s sentence.
AFFIRMED.

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