US v. Darius Galloway

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [998920330-2] Originating case number: 7:07-cr-00036-F-1. Copies to all parties and the district court/agency. [998982855].. [12-4222]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4222

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS LAMONT GALLOWAY,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00036-F-1)

Submitted:

November 7, 2012

Decided:

November 16, 2012

Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darius

Lamont

Galloway

was

convicted

by

a

jury

of

possession with intent to distribute at least five but less than
fifty grams of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006)

(Count

One);

possession

of

a

firearm

by

a

felon,

in

violation of 18 U.S.C. §§ 922(g)(1), 924 (2006) (Count Two); and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2006) (Count Three).
The district court sentenced Galloway as a career offender to a
total sentence of 360 months’ imprisonment.

In Galloway’s prior

appeal, we affirmed his convictions, vacated his sentence, and
remanded for resentencing in light of United States v. Simmons,
649

F.3d

237

(4th

Cir.

2011)

(en

banc).

United

States

v.

Galloway, 459 F. App’x 232 (4th Cir. 2011) (No. 09-4843), cert.
denied, 132 S. Ct. 2699 (2012).
On

remand,

the

district

court

held

Galloway

accountable for 4.5 ounces of cocaine, 50.1 grams of crack, and
63.1 grams of marijuana.

The court sentenced Galloway to a

within-Guidelines sentence of 110 months’ imprisonment on Counts
One and Two concurrent, followed by a consecutive sentence of
sixty

months’

amended

imprisonment

sentence

of

170

on

Count

months’

Three,

yielding

imprisonment.

On

a

total

appeal,

Galloway argues that the district court erroneously relied upon
acquitted

conduct

in

determining
2

the

drug

quantities

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attributable

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to

him

for

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sentencing

purposes.

In

addition,

Galloway contends that the Government failed to establish the
drug

quantities

for

purposes

of

relevant

conduct

by

a

preponderance of the evidence.
We review a sentence for procedural and substantive
reasonableness, applying an abuse of discretion standard.
v. United States, 552 U.S. 38, 41 (2007).

Gall

In determining the

procedural reasonableness of a sentence, we consider whether the
district court properly calculated the Guidelines range, treated
the Guidelines as advisory, considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence.

Gall, 552

U.S. at 51.
We reject Galloway’s argument that the district court
erroneously

considered

acquitted

advisory Guidelines range.

conduct

in

determining

his

The Sentencing Guidelines require a

sentencing court to consider relevant conduct in calculating a
defendant’s advisory Guidelines range, including “all acts and
omissions . . . that were part of the same course of conduct or
common

scheme

Sentencing
United

or

plan

Guidelines

States

v.

as

the

Manual

Hayes,

322

offense

of

(“USSG”)
F.3d

792,

conviction.”

§ 1B1.3(a)(2)
802

(4th

U.S.
(2011);

Cir.

2003)

(noting that a “court has no discretion to disregard relevant
conduct” when calculating offense level).
3

The sentencing court

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is

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not

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“bound

determining

by

drug

the

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evidence

quantity

or

presented

other

at

relevant

trial

conduct,”

when
United

States v. Young, 609 F.3d 348, 357 (4th Cir. 2010), and may
“consider acquitted conduct in establishing drug amounts for the
purpose of sentencing, so long as the amounts are established by
a preponderance of the evidence.”

United States v. Perry, 560

F.3d 246, 258 (4th Cir. 2009).
Galloway next asserts that the Government failed to
establish

the

drug

quantities

preponderance of the evidence.

attributed

to

him

by

a

We review the district court’s

calculation of the quantity of drugs attributable to a defendant
for

sentencing

Fullilove,
occurs

purposes

388

“when,

F.3d

for

104,

although

106

there

clear
(4th
is

error.
Cir.

United
2004).

evidence

to

States

Clear

support

v.

error

it,

the

reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”

United

States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008) (citation
and

internal

quotation

marks

omitted).

In

calculating

drug

amounts for sentencing purposes, “a sentencing court may give
weight

to

any

uncorroborated
sufficient

relevant
hearsay,

indicia

of

information
provided

reliability

that
to

before
the
support

it,

including

information
its

has

accuracy.”

United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010).
Our

review

of

the

record

confirms
4

that

the

Government

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established the relevant drug quantities by a preponderance of
the evidence.
We therefore affirm the district court’s judgment.

We

deny Galloway’s pro se motion for leave to file a supplemental
brief.
legal
before

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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