US v. Dilade McCoy

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion terminating Motion for other relief [999542162-2]; terminating Motion to file supplemental brief(s) [999522517-2] Originating case number: 3:14-cr-00044-REP-2. [999678390]. [14-4745]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4745

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DILADE MCCOY,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:14-cr-00044-REP-2)

Argued:

September 17, 2015

Decided:

October 15, 2015

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Gregory joined.

ARGUED:
Gregory
Bruce
English,
ENGLISH
LAW
FIRM,
PLLC,
Alexandria, Virginia, for Appellant.
Angela Mastandrea-Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
ON BRIEF:
Dana J. Boente, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:
Dilade McCoy challenges as substantively unreasonable his
188-month sentence for conspiracy and possession with intent to
distribute cocaine.

We affirm.

I.
In 2014, a federal grand jury indicted McCoy for conspiracy
to distribute and possess with intent to distribute 500 grams or
more

of

cocaine,

possession
cocaine,

with

in

in

violation

intent

violation

to
of

of

21

distribute
21

U.S.C.

U.S.C.
500

§

§

grams

841(a),

846

(2012);

or

more

of

(b)(1)(B)(ii)

(2012); and possession of ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012).
defendant

testified

occasions:

to

buying

cocaine

At trial, his co-

from

McCoy

on

three

an early summer 2013 sale of one kilogram, a late

summer 2013 sale of three kilograms that were returned for poor
quality, and a November 2013 sale of three kilograms.

The jury

found McCoy guilty of the drug-related charges for an amount of
cocaine greater than 500 grams but less than 5 kilograms.
In

the

Presentence

Investigation

Report

(PSR),

the

probation officer counted all three sales and attributed seven
kilograms of cocaine to McCoy,

above the range the jury found.

Pursuant to the U.S. Sentencing Guidelines Manual § 2D1.1(c)(4)
(U.S.

Sentencing

Comm’n

2013),
2

the

PSR

pegged

McCoy’s

base

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offense

level

at

history

category

32.
as

The

II,

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PSR

calculated

reflecting

three

McCoy’s

points

criminal

for

a

2005

conviction for criminal possession of cocaine with intent to
distribute.

The resulting advisory Guidelines range was 135 to

168 months’ imprisonment.
McCoy objected to the amount of cocaine attributed to him,
arguing that he should be held accountable only for the amount
of

cocaine

found

by

the

jury,

which

would

reduce

his

base

offense level to 30 and Guidelines range to 108 to 120 months.
He sought a term of imprisonment no greater than the statutory
mandatory minimum sentence of 120 months.
The Government moved for an upward departure, arguing that
McCoy’s criminal history category understated the seriousness of
his

criminal

past.

While

a

juvenile,

McCoy

felonies, for which he was tried as an adult.
robberies

in

imprisoned.

1986

at

age

15,

was

committed

three

He committed two

convicted

of

both

and

In 1989, at age 17 and one year after his release

from prison, he committed another violent crime, pleading guilty
to assault with intent to cause serious injury with a weapon.
For that offense, he served eight years in prison.

He was

discharged from parole in 2000 and arrested less than five years
later, resulting in the 2005 conviction for criminal possession
of cocaine.

Because McCoy committed the robberies and assault

more than fifteen years before the present offenses, the PSR did
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not

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count

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them

in

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determining

his

criminal

pursuant to Guidelines § 4A1.2(e)(3).

history

category

To reflect the juvenile

convictions, the Government requested an increase to criminal
history

category

IV

and

a

sentence

of

192

months,

which

within the applicable 168-to-210 month Guidelines range.

is

McCoy

objected to consideration of his juvenile convictions because of
their remoteness and his youth at the time of the offenses.
The district court rejected McCoy’s objection to the amount
of cocaine attributed to him.

In response to the Government’s

motion for upward departure, the court observed that McCoy’s
criminal history was “quite serious” and that “the facts here
call for the application of [§] 4A1.3,” which governs upward
departures based on the inadequacy of a defendant’s criminal
history

category.

resulting

in

an

The

court

additional

counted

eight

all

three

points,

convictions,

placing

McCoy

in

criminal history category V with a Guidelines range of 188 to
235

months’

months’

imprisonment.

imprisonment,

The

court

explaining

sentenced

that

the

McCoy

to

departure

188
was

“necessary to protect the public from the defendant, to promote
respect for the law, to deter the defendant, and to deter others

4

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similarly

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situated.”

McCoy

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noted

a

timely

appeal

of

this

sentence. 1
We

review

a

sentence

for

deferential

abuse-of-discretion

States,

U.S.

552

38,

41

reasonableness

standard.”

(2007).

The

“under

Gall

same

v.

standard

a

United
applies

whether the sentence is “inside, just outside, or significantly
outside

the

Guidelines

range.”

Id.

However,

a

“major

departure” from the Guidelines range “should be supported by a
more significant justification than a minor one.”

Id. at 50.

In reviewing a departure from the advisory Guidelines range, we
“defer to the trial court and can reverse a sentence only if it
is unreasonable, even if the sentence would not have been [our]
choice.”

United States v. Evans, 526 F.3d 155, 160 (4th Cir.

2008) (emphasis omitted).

II.
McCoy

makes

no

claim

that

his

sentence

is

procedurally

unreasonable, but he poses several challenges to the substantive
reasonableness of his sentence.

Each argument fails.

1

McCoy filed a pro se supplemental brief in which he also
challenges the sufficiency of the evidence.
After thorough
review of these arguments, we find that they lack merit.
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A.
First,

McCoy

asserts

that

his

sentence

is

substantively

unreasonable because the district court “improperly considered”
his stale juvenile convictions.

Appellant’s Br. 15.

He argues

that these crimes, which he committed between the time he was 15
to

17

before

years
he

old,

and

committed

which

the

occurred

instant

approximately

crimes,

do

not

25

years

justify

the

district court’s upward departure.
Section 4A1.3(a)(1) of the Guidelines authorizes an upward
departure

when

defendant’s

“reliable

criminal

information

history

category

indicates

that

substantially

the

under-

represents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3(a)(1); see United States v. Whorley, 550 F.3d
326, 341 (4th Cir. 2008) (noting that an under-representative
criminal history category is an “encouraged” basis for upward
departure).

A

court

departure

a

defendant’s

on

may

base

a

prior

Guidelines

§

convictions,

4A1.3
even

upward

if

those

convictions are too old to be counted in the calculation of the
Guidelines

range

under

Guidelines

§

4A1.2(e).

U.S.S.G.

§§ 4A1.2(e) cmt. n. 8, 4A1.3(a)(2)(A).
The
category

district

court

found

under-represented

warrant an upward departure.

that

his

McCoy’s

criminal

criminal

history

history

enough

to

The court recognized McCoy’s youth
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at the time he committed the robberies and the assault with
intent to cause serious injury with a weapon.
recognized

the

offenses.

But given the seriousness of the juvenile crimes and

the

that

fact

remoteness

McCoy

of

these

committed

crimes

The court also

another

from

his

crime

--

present

criminal

possession of cocaine -- within five years of being released
from

prison

court

found

on

the

that

third

juvenile

counting

the

charge

juvenile

(the

assault),

felonies

in

the

McCoy’s

criminal history better represented that “serious” history and
his likelihood of recidivism.
Relying heavily on our recent decision in United States v.
Howard, 773 F.3d 519 (4th Cir. 2014), McCoy maintains that the
district
Howard,

court
we

enormous

held

abused
that

departure

its
the

from

discretion
imposition

the

in

so

of

121-month

a

top

reasoning.

life
of

sentence,

the

In
an

Guidelines

range, on the basis of juvenile, non-violent, stale convictions,
constituted an abuse of discretion.
535-36.
hand.

Howard

is

clearly

Howard, 773 F.3d at 528,

distinguishable

the

case

at

For here the court imposed a much more modest upward

departure

(from

168

months

violent juvenile crimes.

to

188

months)

v.

Myers,

589

on

the

basis

of

We have found reasonable far greater

upward departures based on similar facts.
States

from

F.3d

117

(4th

See, e.g., United

Cir.

2009)

(finding

reasonable an upward departure from 121 months to 360 months
7

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based on three stale convictions); United States v. Lawrence,
349 F.3d 724, 727 (4th Cir. 2003) (finding reasonable an upward
departure from 96 months to a total of 262 months based in part
on the defendant’s “extensive juvenile record”).

The district

court here departed upward a number of months that “pale[s] in
comparison to” the upward departure in Howard, 773 F.3d at 530,
and did not abuse its discretion in considering McCoy’s violent
juvenile crimes in doing so.
B.
Second,

McCoy

argues

that

his

sentence

is

substantively

unreasonable because the district court increased his criminal
history category to V, even though the Government only requested
an increase to category IV.

He again seeks to analogize his

case to Howard, where we recognized that, although “no district
court is ever mandated to impose the sentence recommended by the
prosecution,” it was notable that the district court’s sentence
of life imprisonment was far longer than the 360-month sentence
advocated by the Government.
out

that

important
sentencing

the

Government’s

pillar”

in

773 F.3d at 533-35.
recommendation

achieving

disparities,”

one

of

“the
the

“can

avoidance
principle

Sentencing Reform Act of 1984 and the Guidelines.
We

stand

by

those

observations,

but

they

We pointed
serve

of

as

an

unwarranted

goals

of

the

Id. at 535.
do

not

assist

McCoy for, although the district court increased his criminal
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history category above the Government’s request, the sentence of
188

months

was

Government.

lower

than

Furthermore,

the
had

192

months
district

the

requested
court

by

the

increased

McCoy’s criminal history category to IV, as requested by the
Government, a sentence of 188 months would still have fallen
within

the

resulting

Guidelines

range

of

168

to

210

months.

Thus, this increase in the criminal history category does not
raise

the

issue

of

“unwarranted

sentencing

disparities”

identified in Howard.
C.
Third,

McCoy

maintains

that

seriousness of his offense.

his

sentence

overstates

the

He argues that the three-kilogram

order placed in November 2013 merely replaced the three-kilogram
order returned in the summer of 2013.

McCoy concedes that all

seven kilograms “can properly be considered” in the “technical
determination” of his base offense level.

Appellant’s Br. 18.

However, he contends that the district court should have used
its discretion to depart downward to a base offense level of 30,
based

only

“reality”
Appellant’s

on

four

of

how

Br.

kilograms
much

18-19.

of

cocaine
The

record

cocaine,
he
does

to

reflect

actually
not

the

trafficked.

support

McCoy’s

argument that the third sale was a replacement, nor would the
district court have abused its discretion by basing the base
offense

level

calculation

on

seven
9

kilograms

even

if

it

did

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constitute a replacement.

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See United States v. Young, 609 F.3d

348, 357 (4th Cir. 2010).
D.
Lastly,

McCoy

argues

that

his

sentence

is

substantively

unreasonable because Amendment 782 to the Guidelines went into
effect

shortly

retroactive

after

he

amendment

was

that

sentenced.
lowered

applicable to drug-related crimes.

the

Amendment
base

782

offense

is

a

levels

Post-sentencing Guidelines

amendments do not make a pre-amendment sentence unreasonable.
See United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).
The district court correctly applied the Guidelines prevailing
at the time of sentencing.
application

of

Amendment

The proper avenue for a request for
782

is

a

motion

under

18

U.S.C.

§ 3582(c)(2), which would allow the district court to assess in
the first instance whether and to what extent the amendment may
affect McCoy’s sentence.

Id. 2

III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

2

Our holding as to the substantive reasonableness of
McCoy’s sentence is rendered without prejudice to McCoy’s right
to pursue such relief in the district court.
10