US v. Michael Kelly

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00054-NCT-1 Copies to all parties and the district court/agency. [1000010844].. [15-4653]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4653

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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)

Submitted:

April 25, 2016

Decided:

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Affirmed by unpublished per curiam opinion.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,
for Appellant.
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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael

Ramond

Kelly

pled

guilty,

pursuant

to

a

plea

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’
imprisonment.

Counsel

California,

386

U.S.

meritorious

grounds

filed

738

a

brief

(1967),

for

appeal

pursuant

stating
but

that

to

Anders

there

questioning

were

whether

v.
no
the

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.

Kelly

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 affirm.

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
Cir.

2016).

procedural

This
and

review

substantive

Gall, 552 U.S. at 51.

requires

consideration

reasonableness

of

of

the

both

the

sentence.

In determining whether a sentence is
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reasonable,

we

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consider,

among

other

factors,

whether the district court properly calculated the defendant’s
advisory

Sentencing

Guidelines

range.

Id.

Only

after

determining that a sentence is procedurally reasonable will we
consider its substantive reasonableness, “tak[ing] into account
the totality of the circumstances.”
within

or

below

presumptively
can

only

unreasonable
factors.”

properly

[substantively]

“Any sentence that is

calculated
reasonable.

be

a

Id.

rebutted
when

by

measured

showing
against

Guidelines
Such

that
the

a

the

18

range

is

presumption
sentence

U.S.C.

is

§ 3553(a)

United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.) (citation omitted), cert. denied, 135 S. Ct. 421 (2014).
We

turn

criminal

first

to

designation.

the
The

propriety

of

Kelly’s

parties

agree

that

armed

career

Kelly’s

prior

North Carolina convictions for assault with a deadly weapon with
intent

to

kill

force clause.

qualify

as

violent

felonies

See 18 U.S.C. § 924(e)(2)(B)(i).

under

the

ACCA’s

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.

Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009).

Accordingly, we express no opinion on the designation of
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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.
Next,

we

review

the

district

court’s

responsibility determination for clear error.”

“acceptance-ofUnited States v.

Burns, 781 F.3d 688, 692 (4th Cir.), cert. denied, 135 S. Ct.
2872 (2015).

Under the Guidelines, a defendant is eligible for

a two-level reduction if he “clearly demonstrates acceptance of
responsibility

for

his

offense.”

Manual § 3E1.1(a) (2014).

U.S.

Sentencing

Guidelines

And, if his offense level is greater

than 16, he is eligible for an additional 1-level reduction upon
the Government’s motion.
whether

a

defendant

responsibility
factors,

USSG § 3E1.1(b).

is

reduction,

whether

the

deserving
a

court

defendant

of

When determining

the

considers,

voluntarily

withdrew from criminal conduct or associations.
cmt. n.1(B).

acceptance
among

of

other

terminated

or

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.
2010).
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
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the victim of the shooting that resulted in Kelly’s arrest for
the

instant

resulted

offense.

in

justice.

an

This

assault

offense-level

Although

Kelly

on

a

enhancement

insisted

material

for

that

he

witness

obstruction
and

the

of

others

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.
We

further

conclude

that

Kelly

has

not

rebutted

the

presumption that his within-Guidelines sentence is substantively
reasonable.

The

court

reasonably

rejected

Kelly’s

assertion

that he is a changed man in light of his long history of using
firearms

to

terrorize

and

injure

people

and

his

recent

orchestration of the revenge-motivated attack on the victim.
In

accordance

with

Anders,

we

have

reviewed

the

entire

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

We

therefore

affirm

the

district

court’s

judgment.

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

If Kelly requests that a petition be filed, but
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counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

and

materials

legal
before

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Kelly.
facts

this

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

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