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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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