US v. Shabasco Gray

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:13-cr-00620-MGL-1. Copies to all parties and the district court/agency. [999592550].. [14-4630]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4630

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHABASCO DAKOTA SHINEED GRAY, a/k/a Basco,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville.
Mary G. Lewis, District Judge.
(6:13-cr-00620-MGL-1)

Submitted:

May 18, 2015

Decided:

May 29, 2015

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

Affirmed by unpublished per curiam opinion.

Michael
Chesser,
Aiken,
South
Carolina,
for
Appellant.
Elizabeth
Jean
Howard,
Assistant
United
States
Attorney,
Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In April 2014, Shabasco Dakota Shineed Gray entered into a
written plea agreement with the Government pursuant to which he
agreed to plead guilty to conspiracy to possess with intent to
distribute and to distribute 280 grams or more of crack cocaine
and 5 kilograms or more of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012).

This was one of six

charges a federal grand jury returned against Gray in a second
superseding

indictment,

which

the

Government

obtained

earlier

that month.
The

district

court

subsequently

sentenced

Gray

to

136

months’ imprisonment, which was in the middle of his advisory
Sentencing

Guidelines

supervised

release.

range, 1
On

and

appeal,

imposed

Gray’s

a

5-year

attorney

has

term
filed

of
a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious grounds for appeal, but
questioning whether Gray’s conviction is invalid, because the
district court did not separately arraign Gray on the second
superseding indictment, and whether the district court committed

1

The district court, having adopted the alternate
sentencing calculations set forth in the presentence report
(“PSR”) prepared on Gray, calculated Gray’s Guidelines range at
121-151 months. This was consistent with the parties’ agreement
that Gray should be afforded the benefit of Amendment 782 to the
U.S. Sentencing Guidelines Manual.

2

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reversible

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procedural

error

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in

failing

objection to a sentencing enhancement.

to

rule

on

Gray’s

Although advised of his

right to do so, Gray has not filed a pro se supplemental brief.
The Government has declined to file a response.

For the reasons

that follow, we affirm.
Based on the transcript of the Fed. R. Crim. P. 11 hearing,
we conclude that Gray has waived any challenge he might have had
based

on

the

lack

of

a

superseding indictment.

separate

arraignment

on

the

second

Specifically, at the Rule 11 hearing,

counsel for Gray identified this as a potential concern, but
explicitly informed the court that the Rule 11 hearing could
serve as the arraignment.

Gray consented to this approach.

The

record further establishes that all parties agreed to cancel the
arraignment, which had been scheduled for later that week.

We

thus hold that Gray has waived appellate review of this claim.
See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.
2002) (“A party who identifies an issue, and then explicitly
withdraws it, has waived the issue.”); see also United States v.
Laslie,

716

intentional,

F.3d
and

612,

614

(D.C.

extinguishes

an

Cir.
error

2013)
so

(“[W]aiver

that

there

is

is
no

review, because the defendant has knowingly and personally given
up the waived right.” (internal quotation marks omitted)).
We

next

consider

Gray’s

challenge

reasonableness of his sentence.

to

the

procedural

This court reviews any criminal
3

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sentence,
outside

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“whether

the

deferential

inside,

Guidelines

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just

range,”

abuse-of-discretion

outside,

for

or

significantly

reasonableness,

standard.”

United

“under
States

a
v.

King, 673 F.3d 274, 283 (4th Cir. 2012); see Gall v. United
States,

552

procedural

U.S.

38,

46,

reasonableness

51

(2007).

review

is

court’s Guidelines calculations.

to

The

first

evaluate

step

the

in

district

Gall, 552 U.S. at 51.

At

issue here is whether the district court failed to adequately
respond

to

Gray’s

objection

possession of firearms.
Although
enhancement,

counsel
the

to

a

two-level

enhancement

for

See USSG § 2D1.1(b)(1).
for

sentencing

Gray

initially

transcript

objected

reveals

to

that

this

defense

counsel withdrew this and the other proffered objections to the
PSR.
to

We thus conclude that the district court was not obligated
resolve

this

objection,

pursuant

to

Fed.

R.

Crim.

P.

32(i)(3)(B), 2 because the application of this provision was no

2

This Rule provides that the sentencing court must either
rule on “any disputed portion of the presentence report or other
controverted matter . . . or determine that a ruling is
unnecessary
either
because
the
matter
will
not
affect
sentencing, or because the court will not consider the matter in
sentencing[.]”

4

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longer

in

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dispute. 3

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Accordingly,

we

reject

Gray’s

claim

of

procedural error in the district court’s sentencing process.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires counsel to inform Gray, in writing, of his
right to petition the Supreme Court of the United States for
further review.

If Gray requests that a petition be filed but

counsel believes such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Gray.
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

3

We disagree with appellate counsel’s suggestion that
Gray’s
statement
during
his
allocution
reinvigorated
the
objection.

5