US v. Michael Kelly
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00054-NCT-1 Copies to all parties and the district court/agency. .. [15-4653]
Pg: 1 of 6
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
MICHAEL RAMOND KELLY, a/k/a Michael Raymond Kelly,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:15-cr-00054-NCT-1)
April 25, 2016
January 26, 2017
Before AGEE, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
Ripley Rand, United States Attorney, Terry M.
Meinecke, Assistant United States Attorney, Winston Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Pg: 2 of 6
agreement, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012).
The district court
sentenced Kelly to a within-Guidelines sentence of 300 months’
district court procedurally erred in declining to grant Kelly a
three-level downward adjustment for acceptance of responsibility
and whether Kelly’s sentence is substantively reasonable.
was advised of his right to file a supplemental brief, but he
did not do so.
We ordered supplemental briefing on whether
Kelly’s North Carolina convictions for assault with a deadly
weapon inflicting serious injury, assault with a deadly weapon
with intent to kill, and voluntary manslaughter were properly
classified as violent felonies under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e) (2012).
We review a sentence for reasonableness under a deferential
abuse of discretion standard.
Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Berry, 814 F.3d 192, 194-95 (4th
Gall, 552 U.S. at 51.
In determining whether a sentence is
Pg: 3 of 6
whether the district court properly calculated the defendant’s
determining that a sentence is procedurally reasonable will we
consider its substantive reasonableness, “tak[ing] into account
the totality of the circumstances.”
“Any sentence that is
United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.) (citation omitted), cert. denied, 135 S. Ct. 421 (2014).
North Carolina convictions for assault with a deadly weapon with
See 18 U.S.C. § 924(e)(2)(B)(i).
They also agree
that, because Kelly “has three previous convictions” for this
offense, “committed on occasions different from one another,” 18
U.S.C. § 924(e)(1), he qualifies as an armed career criminal.
We deem arguments not raised by the parties waived and limit our
review to the arguments raised in the parties’ briefs.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
Accordingly, we express no opinion on the designation of
Pg: 4 of 6
Kelly’s other prior convictions as violent felonies and will not
disturb the district court’s decision to sentence Kelly as an
armed career criminal.
responsibility determination for clear error.”
“acceptance-ofUnited States v.
Burns, 781 F.3d 688, 692 (4th Cir.), cert. denied, 135 S. Ct.
Under the Guidelines, a defendant is eligible for
a two-level reduction if he “clearly demonstrates acceptance of
Manual § 3E1.1(a) (2014).
And, if his offense level is greater
than 16, he is eligible for an additional 1-level reduction upon
the Government’s motion.
USSG § 3E1.1(b).
withdrew from criminal conduct or associations.
USSG § 3E1.1
Moreover, absent extraordinary circumstances, a
defendant is ineligible for the reduction when he receives an
enhancement for obstructing justice.
USSG §§ 3C1.1, 3E1.1 cmt.
n.4; see United States v. Knight, 606 F.3d 171, 175 (4th Cir.
Here, Kelly did not terminate or withdraw from criminal
conduct or associations after his arrest.
Instead, he and his
fellow inmates brutally attacked the same person who had been
Pg: 5 of 6
the victim of the shooting that resulted in Kelly’s arrest for
attacked the victim in self-defense, the video footage and an
email he sent the day after showed that the attack was revengemotivated and that Kelly was not remorseful for his conduct.
Because the obstruction of justice enhancement was warranted and
Kelly did not terminate or withdraw from criminal conduct or
associations, we conclude that the court did not clearly err in
determining that Kelly did not deserve a downward adjustment for
acceptance of responsibility.
presumption that his within-Guidelines sentence is substantively
that he is a changed man in light of his long history of using
orchestration of the revenge-motivated attack on the victim.
record in this case and have found no meritorious grounds for
This court requires that counsel inform Kelly, in writing, of
his right to petition the Supreme Court of the United States for
If Kelly requests that a petition be filed, but
Pg: 6 of 6
counsel believes that such a petition would be frivolous, then
Counsel’s motion must state that a copy thereof
was served on Kelly.
We dispense with oral argument because the
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?