US v. Jeffrey Gregory

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00334-JFM-1 Copies to all parties and the district court/agency. [999749049].. [15-4222]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4222

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY GREGORY,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:13-cr-00334-JFM-1)

Submitted:

January 20, 2016

Decided:

February 4, 2016

Before NIEMEYER and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Michael C. Hanlon, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Between

2008

and

2009,

Jeffrey

Gregory,

along

with

a

coconspirator, engaged in a series of straw firearm purchases.
Because Gregory was a convicted felon, he was unable to legally
purchase the firearms.

Gregory’s coconspirator filled out the

paperwork required to purchase the firearms, then transferred
the firearms to Gregory.

As a result of these straw purchases

and other illegal activities, Gregory was indicted for numerous
charges

in

agreement,

federal
Gregory

court.
pled

In

guilty

2010,

to

pursuant

possession

of

to
a

a

plea

Ruger

.45

caliber firearm by a felon, in violation of 18 U.S.C. § 922(g)
(2012), and possession of an Intratec 9mm handgun in furtherance
of drug trafficking, in violation of 18 U.S.C. § 924(c) (2012).
In 2011, while in federal custody, Gregory was arrested by
state authorities and charged with the 2009 first-degree murder
of

Carlos

dismissed

Botello.
with

The

state

prejudice

prosecution

because

the

Interstate Agreement on Detainers Act.
the

state

indictment

case,

in

against

2013

the

Gregory,

federal
charging

was

state

eventually

violated

the

After the dismissal of
government

obtained

him

inter

with,

an

alia,

making a false statement in connection with the acquisition of
the

Ruger

.45

caliber

handgun,

in

violation

of

18

U.S.C.

§ 922(a)(6) (2012), and possession of a separate firearm by a
felon, in violation of 18 U.S.C. § 922(g).
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Gregory

Filed: 02/04/2016

moved

Fifth

Amendment

After

the

to

due

district

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dismiss
process

court

these
and

denied

counts

double

based

jeopardy

Gregory’s

on

alleged

violations.

motions,

Gregory

entered into a conditional Rule 11(c)(1)(C) plea agreement with
the

Government,

wherein

he

reserved

denial of his motions to dismiss.

his

right

to

appeal

the

On appeal, Gregory argues

that his Fifth Amendment due process rights were violated by the
lengthy preindictment delay that occurred.

He further argues

that the Fifth Amendment Double Jeopardy Clause was violated by
his

conviction

for

false

statements

acquisition of the Ruger handgun.

in

connection

with

the

For the reasons that follow,

we affirm.
We review due process claims de novo.
Westbrooks,

780

F.3d

593,

595

(4th

Cir.

United States v.
2015).

The

Fifth

Amendment Due Process Clause requires dismissal of an indictment
if

it

is

shown

that

a

“pre-indictment

delay

.

.

.

caused

substantial prejudice to [a defendant’s] rights to a fair trial
and that the delay was an intentional device to gain tactical
advantage over the accused.”
307, 324 (1971).

United States v. Marion, 404 U.S.

We conduct “a two-pronged inquiry to evaluate

a defendant’s claim that pre-indictment delay violated his right
to due process.”

United States v. Uribe-Rios, 558 F.3d 347, 358

(4th Cir. 2009).

First, we examine “whether the defendant has

satisfied his burden of proving actual prejudice” and, if so, we
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consider “the government’s reasons for the delay, balancing the
prejudice to the defendant with the Government’s justification
for delay.”
In

Id. (internal quotation marks omitted).

evaluating

the

first

prong,

we

are

mindful

that

the

defendant bears a “heavy burden” because he must demonstrate
“actual prejudice, as opposed to mere speculative prejudice,”
and must “show that any actual prejudice was substantial—that he
was meaningfully impaired in his ability to defend against the
state's charges to such an extent that the disposition of the
criminal

proceeding

was

Shealey,

641

627,

F.3d

likely

affected.”

633-34

(4th

United

Cir.

2011)

States

v.

(internal

quotation marks omitted).
Gregory does not point to any trial prejudice to support
his due process claim.

Rather, he argues that the preindictment

delay harmed his ability to negotiate concurrent sentences on
his various federal charges.

Gregory argues that, in light of

the importance of plea bargaining in the resolution of federal
criminal proceedings, this court should recognize such prejudice
as

sufficient

preindictment

to

support

delay.

rejected, such arguments.

We

a

due
have

process

claim

previously

premised

addressed,

See Uribe-Rios, 558 F.3d at 358.

4

on
and

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To the extent that Uribe-Rios is factually distinguishable
from Gregory’s case, we find those distinctions to be irrelevant
to the prejudice analysis.

Moreover, the cases cited by Gregory

to support his argument that Uribe-Rios is outdated are Sixth
Amendment rather than Fifth Amendment cases, and are therefore
of little help in evaluating claims of preindictment delay.

We

therefore conclude that Gregory’s due process claim is without
merit.
Double

jeopardy

claims

are

likewise

reviewed

de

novo.

United States v. Studifin, 240 F.3d 415, 418 (4th Cir. 2001).
The Double

Jeopardy

Clause

prohibits

“successive

prosecutions

for the same offense as well as the imposition of cumulative
punishments for the same offense in a single criminal trial.”
United States v. Shrader, 675 F.3d 300, 313 (4th Cir. 2012)
(internal

quotation

marks

omitted).

Where

a

case

involves

multiple charges, the Double Jeopardy Clause is not offended
where each charge requires proof of a distinct element.

See

Blockburger v. United States, 284 U.S. 299, 304 (1932); United
States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010).
Gregory acknowledges that, applying the Blockburger test,
his second prosecution is permissible.

He therefore argues that

we should look instead to the double jeopardy test applied in
Jordan

v.

Rashad v.

Virginia,
Burt,

108

653

F.2d

F.3d

870,

677
5

873

(6th

(4th

Cir.

Cir.

1997).

1980),
We

and
have

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previously repudiated these cases, United States v. Williams,
155 F.3d 418, 420-21 (4th Cir. 1998), and find no reason to
revisit that repudiation.

Our decision in Williams likewise

forecloses Gregory’s remaining double jeopardy arguments.

Id.

at 420-22.
Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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