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UNPUBLISHED PER CURIAM OPINION filed.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. [1000010844].. [15-4653]

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Appeal: 15-4653 Doc: 31 Filed: 01/26/2017 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4653 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL RAMOND KELLY, a/k/a Michael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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4653 Doc: 31 Filed: 01/26/2017 Pg: 2 of 6 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 2 Appeal: 15-4653 Doc: 31 procedurally Filed: 01/26/2017 reasonable, we Pg: 3 of 6 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 3 Appeal: 15-4653 Doc: 31 Filed: 01/26/2017 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. 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 4 Appeal: 15-4653 Doc: 31 Filed: 01/26/2017 Pg: 5 of 6 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 5 Appeal: 15-4653 Doc: 31 Filed: 01/26/2017 Pg: 6 of 6 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 6

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