US v. Shabasco Gray
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:13-cr-00620-MGL-1. Copies to all parties and the district court/agency. .. [14-4630]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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.
May 18, 2015
May 29, 2015
Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Affirmed by unpublished per curiam opinion.
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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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
months’ imprisonment, which was in the middle of his advisory
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
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.
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objection to a sentencing enhancement.
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
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.
record further establishes that all parties agreed to cancel the
arraignment, which had been scheduled for later that week.
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.
review, because the defendant has knowingly and personally given
up the waived right.” (internal quotation marks omitted)).
reasonableness of his sentence.
This court reviews any criminal
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King, 673 F.3d 274, 283 (4th Cir. 2012); see Gall v. United
court’s Guidelines calculations.
Gall, 552 U.S. at 51.
issue here is whether the district court failed to adequately
possession of firearms.
See USSG § 2D1.1(b)(1).
counsel withdrew this and the other proffered objections to the
We thus conclude that the district court was not obligated
32(i)(3)(B), 2 because the application of this provision was no
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
sentencing, or because the court will not consider the matter in
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procedural error in the district court’s sentencing process.
record in this case and have found no meritorious issues for
This court requires counsel to inform Gray, in writing, of his
right to petition the Supreme Court of the United States for
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
We dispense with oral argument because the facts and
We disagree with appellate counsel’s suggestion that
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