US v. Levelle Grant

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cr-00412-DCN-1 Copies to all parties and the district court/agency. [999988411].. [15-4750]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4750

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEVELLE GRANT,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:14-cr-00412-DCN-1)

Argued:

October 26, 2016

Decided:

December 16, 2016

Before THACKER and HARRIS, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished opinion.
Judge Harris
opinion, in which Judge Thacker and Judge Lee joined.

wrote

the

ARGUED: Howard Walton Anderson III, LAW OFFICE OF HOWARD W.
ANDERSON
III,
LLC,
Pendleton,
South
Carolina,
for
Appellant. Michael Rhett DeHart, OFFICE OF THE UNITED STATES
ATTORNEY,
Charleston,
South
Carolina,
for
Appellee.
ON
BRIEF: William Nettles, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PAMELA HARRIS, Circuit Judge:
Levelle Grant pleaded guilty to two counts of possession of
a firearm in a school zone in violation of 18 U.S.C. § 922(q).
The district court sentenced Grant to ten years’ imprisonment,
the statutory maximum.

The court also imposed a three-year term

of supervised release, along with a $100 special assessment on
each count.
Grant does not challenge his convictions under § 922(q),
but he does appeal his sentence.

According to Grant, his three-

year supervised-release term and the $100 monetary assessments
are

contrary

to

the

plain

language

of

§

922(q)ʹs

penalty

provision and thus unlawful.

Grant also contends that his ten-

year

procedurally

prison

sentence

unreasonable.

is

and

substantively

Finding no reversible error, we affirm.

I.
During a period of less than one year in 2013 and 2014,
Grant, who previously had been convicted of felony offenses, was
apprehended

three

times

while

in

possession

of

a

firearm.

First, in May 2013, law enforcement in Colleton County, South
Carolina,
vehicle.

attempted

to

initiate

a

traffic

stop

of

Grant’s

Grant accelerated to over 100 mph, forced another car

to the side of the road, and eventually crashed.

The police

searched the vehicle and found a .45 caliber handgun, marijuana,
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a set of scales, and cash.

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Grant was arrested and charged with

state crimes including possession of a firearm by a felon.
Two subsequent incidents involved firearm possession near a
school.

In September 2014, investigators interviewed Grant’s

girlfriend, who admitted that she recently had bought a Jimenez
9mm pistol for Grant.

She then agreed to place a recorded call

to Grant and asked him to deliver the pistol to her.

At a Wal-

Mart that was within 1,000 feet of a middle school, Grant gave
the

gun

to

his

girlfriend,

who

turned

it

over

to

law

when

the

enforcement.
The

final

incident

occurred

in

February

2014,

South Carolina Highway Patrol attempted to stop Grant’s vehicle
on an interstate highway.

Grant accelerated to speeds of 80 to

90 mph before eventually stopping on a side street, within 1,000
feet of an adult education center.
vehicle,
handgun.

police
Grant

found
again

a

loaded

was

During a search of his

semi-automatic

arrested

and

Hi-Point

charged

with

9mm
state

crimes.
Grant was indicted in the District of South Carolina with
three counts of possession of a firearm by a convicted felon,
see 18 U.S.C. § 922(g)(1), and as an armed career criminal, see
18 U.S.C. § 924(e).

Violations of § 922(g) ordinarily carry a

maximum sentence of ten years’ imprisonment and no mandatory
minimum.

18 U.S.C. § 924(a)(2).
3

But when a defendant has at

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least three prior convictions for a “violent felony,” the Armed
Career

Criminal

Act

(“ACCA”)

sentence of fifteen years.

calls

for

a

mandatory

18 U.S.C. § 924(e).

minimum

The parties

agreed that the ACCA fifteen-year minimum applied to Grant, by
virtue

of

three

prior

South

Carolina

convictions

of

second-

degree burglary.
Because those burglary convictions occurred in the 1990s
when Grant was a juvenile, however, the government believed that
a

fifteen-year

allowed

sentence

Grant

to

was

plead

unwarranted.

guilty

Accordingly,

instead

to

two

counts

it
of

possession of a firearm in a school zone, § 922(q), punishable
by a maximum sentence of five years on each count, § 924(a)(4).
The

government

statutory

informed

maximum

imprisonment.
government

Grant

penalty,

that
for

With

filed

Grant’s

a

superseding

it
a

consent

intended
total
to

of

the

indictment,

to

and

seek

ten

years’

agreement,
Grant

that

the

pleaded

guilty to two violations of § 922(q).
Grant’s presentence report (“PSR”) calculated an advisory
Guidelines range of 18 to 24 months for his convictions under §
922(q).

But consistent with its representations during plea

negotiations, the government filed a motion to deviate from that
range in favor of the ten-year statutory maximum.

Specifically,

the government sought a departure under U.S.S.G. § 5K2.21, which
provides

that

a

court

may

depart
4

upward

from

the

Guidelines

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range based on conduct underlying charges dismissed in a plea
agreement.
above

It

the

also

sought

Guidelines

range

an

upward

based

variance,

on

an

or

assessment

sentencing factors set out in 18 U.S.C. § 3553(a).

deviation
of

the

The variance

was warranted, the government argued, under § 3553(a) factors
such as the need to protect the public and promote respect for
law, in light of Grant’s pattern of dangerous conduct.
counsel,

on

the

other

hand,

asked

the

court

to

Grant’s

consider

a

sentence within the Guidelines range, while acknowledging that
even the upper end of that 18- to 24-month range might be “too
light.”

J.A. 69.

At the sentencing hearing, the district court started out
by putting the proposed ten-year sentence in context:
everybody

agrees

that

but

for

[the

government’s]

“I think
.

.

.

generosity . . . Mr. Grant would certainly be going to jail for
at least 15 years, if not more, because there’s a mandatory
minimum of 15.”
sentencing

J.A. 76.

factors

of

§

The court then analyzed the statutory
3553(a),

including

the

nature

and

circumstances of Grant’s § 922(q) offenses; Grant’s history and
characteristics; and the need, through sentencing, to reflect
the seriousness of Grant’s offense, promote respect for law, and
protect the public.

See 18 U.S.C. § 3553(a).

In applying those

factors, the court emphasized that Grant repeatedly, over the
course of less than a year, engaged in illegal possession of a
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firearm; that he involved his girlfriend in a felony; and that
he fled from the police in a manner that endangered others.
Invoking both U.S.S.G. § 5K2.21 and a variance pursuant to the §
3553(a)

factors,

the

district

court

sentenced

Grant

to

the

maximum statutory term of 60 months for each of his two § 922(q)
violations,

served

consecutively,

for

a

total

of

ten

years’

imprisonment.
The

district

supervised

court

release

also

imposed

a

three-year

18

U.S.C.

§

3583,

under

term

and

of

special

assessments of $100 for each count under 18 U.S.C. § 3013.

Both

of those penalties rested on the premise that Grant’s § 922(q)
convictions

were

for

3583(b)(2)–(3)(maximum

felony

offenses.

supervised

release

See
term

18
of

U.S.C.

three

§

years

for Class C and D felonies, one year for misdemeanors); id. at §
3013(a)(1)–(2) (maximum assessment of $100 for felonies, $25 for
classified misdemeanors).

Grant’s PSR listed a maximum three-

year term for supervised release and a $100 special assessment,
and

those

penalties

sentencing hearings.

were

discussed

at

Grant’s

plea

and

At no point did Grant object to § 922(q)’s

treatment as a felony for sentencing purposes.
This timely appeal followed.

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II.
Grant’s first contention on appeal is that the district
court improperly classified his § 922(q) convictions as felonies
rather than misdemeanors for the purpose of determining his term
of supervised release and special assessment.
failed

to

raise

this

argument

review for plain error only.

before

to

circuit.

the

settled

district

court,

we

United States v. Aplicano-Oyuela,

792 F.3d 416, 422 (4th Cir. 2015).
contrary

the

Because Grant

law

of

An error is plain if it is
the

Supreme

Court

or

this

United States v. Carthorne, 726 F.3d 503, 516 (4th

Cir. 2013).

Even then, it may be corrected only if it affects

substantial

rights

and

“seriously

affects

the

fairness,

integrity or public reputation of judicial proceedings.”

See

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)
(internal quotation marks and citation omitted).
Grant’s argument rests on the interplay of three statutory
provisions.

As

noted

above,

under

18

U.S.C.

§

3583,

the

authorized term of supervised release for a Class D felony is
capped at three years, while the maximum term for a misdemeanor
is

one

year.

And

similarly,

under

18

U.S.C.

§

3013,

the

special assessment for a felony is $100, while the assessment
for a misdemeanor ranges from $25 for a Class A misdemeanor to
nothing for a misdemeanor without a letter grade.
term

of

three

years’

supervised
7

release

In imposing a
and

two

$100

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assessments, in other words, the district court treated Grant’s
§ 922(q) convictions as Class D felonies.
How

to

classify

offenses

for

sentencing

purposes

governed by a separate statute, 18 U.S.C. § 3559.

is

Under that

provision, any “offense that is not specifically classified by a
letter grade in the section defining it” is classified by “the
maximum

term

punishable

by

of

imprisonment

“less

than

ten

authorized,”
years

but

with

five

or

an

offense

more

years”

treated as a Class D felony and any offense punishable by one
year or less as a non-felony.
(9).

See 18 U.S.C. § 3559(a)(4),(6)–

So under § 3559, Grant’s convictions under § 922(q), each

punishable by a maximum of five years’ imprisonment, normally
would be classified as Class D felonies.
But Grant points to a final statute, 18 U.S.C. § 924(a)(4),
which establishes the penalty for a § 922(q) violation.

That

provision

then

states:

authorizes

a

five-year

maximum

sentence

and

“Except for the authorization of a term of imprisonment

of not more than 5 years made in this paragraph, for the purpose
of any other law a violation of § 922(q) shall be deemed to be a
misdemeanor.”

Id.

at

§

924(a)(4)

(emphasis

added).

That

language, Grant argues, is perfectly plain, directing that “for
the purpose” of § 3583 (supervised release) and § 3013 (special
assessments) – undoubtedly laws “other” than § 924(a)(4) – his §
922(q) convictions are to be treated as misdemeanors, subject to
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no more than a one-year term of supervised release and to no
special assessments at all.
The

First

Circuit

recently

rejected

precisely

this

argument, on plain error review, in United States v. AlviraSanchez, 804 F.3d 488, 494-95 (1st Cir. 2015), cert. denied, 136
S. Ct. 2030 (2016).
Alvira-Sanchez

As in this case, the district court in

treated

a

§

922(q)

offense

as

a

felony

for

purposes of imposing a three-year term of supervised release
under § 3583 and a $100 assessment under § 3013.
Circuit

acknowledged

penalty

provision

that

allowing

persuasive reading.”

an

interpretation

this

result

Id. at 495.

“may

of
not

The First
§
be

922(q)’s
the

most

Nevertheless, it concluded

that any error committed was not plain, in light of imprecision
in

the

courts

statutory
also

have

framework
treated

sentencing purposes.
We agree.

and
§

the

922(q)

fact

that

offenses

other

as

district

felonies

for

Id.

As the government argues, though it “is not

immediately obvious” on the face of § 922(q), Appellee Br. at 8,
it is perhaps possible to read that provision in conjunction
with § 3559’s classification scheme in a way that would make §
922(q) a felony offense.
governs

any

“offense

that

Section 3559, the government notes,
is

not

specially

classified

by

a

letter grade in the section defining it.”

18 U.S.C. § 3559(a).

Because

refers

§

922(q)’s

penalty

description
9

only

to

“a

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misdemeanor” and does not use a letter grade, the government
reasons,

§

3559(a)’s

default

classification

system

applies,

classifying a § 922(q) offense by reference to its maximum term
of imprisonment.
Like

the

First

Circuit,

we

cannot

conclude

that

this

interpretation is so plainly erroneous as to warrant reversal
absent a properly preserved objection.

No case from the Fourth

Circuit – or any other federal court of appeals – has adopted
Grant’s reading of § 922(q)’s penalty provision.
district court within the Fourth Circuit. 1

Nor has any

Instead, a number of

courts have taken the same approach as the district court here,
treating § 922(q) offenses as felonies for sentencing purposes.
See, e.g., United States v. Nieves-Castano, 480 F.3d 597, 599
(1st Cir. 2007) (§ 922(q) offender sentenced to three-year term
of supervised release); United States v. Handy, 8 F.3d 20, 1993
WL 455551 (5th Cir. 1993) (unpublished table decision) (same);
Hough v. United States, No. 3:13–cv–143–FDW, 2015 WL 127881, at
*1

(W.D.N.C.

government’s

Jan.

8,

2015)

understanding

of

(unpublished)
§

1

922(q)

(same).

appears

to

That
have

the
been

Grant can cite only one district court decision treating a
§ 922(q) violation as a misdemeanor for purposes of supervised
release – and that decision, we note, also appears to have
treated the same § 922(q) violation as a felony for purposes of
the special assessment. See United States v. Rivera-Concepcion,
No. CRIM. 07-169 CCC, 2007 WL 1852608, at *2 (D.P.R. June 25,
2007) (limiting supervised release in connection with a § 922(q)
violation to one year, but imposing a $100 special assessment).
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adopted by a handful of courts – without any analysis, we note –
does not mean that it is correct.

But as the First Circuit

explained in Alvira-Sanchez, “that other courts have fallen prey
to

the

same

error,

if

error

indeed

there

was

here,

[does]

demonstrate that any misconstruction on the part of the district
court was not obviously erroneous.”

804 F.3d at 495.

On plain

error review, that is enough to dispose of Grant’s claim.

III.
We turn now to Grant’s challenge to his ten-year prison
sentence

as

procedurally

and

substantively

unreasonable.

We

review the reasonableness of a sentence under the deferential
abuse of discretion standard.
572, 579 (4th Cir. 2010).
district

court

United States v. Lynn, 592 F.3d

This court first assesses whether the

committed

any

procedural

errors,

which

may

include incorrectly calculating the Guidelines range, failing to
adequately

consider

the

§

3553(a)

factors,

insufficient justification for the sentence.

or

providing

an

United States v.

Lymas, 781 F.3d 106, 111 (4th Cir. 2015) (citing Gall v. United
States,

552

procedurally

U.S.

38,

reasonable,

51

(2007)).
we

then

If
review

the
its

sentence

is

substantive

reasonableness in light of the totality of the circumstances.
Gall, 552 U.S. at 51.

11

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As

noted

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above,

the

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district

court,

invoking

both

a

§

5K2.21 departure and a variance under § 3553(a), sentenced Grant
to the ten-year statutory maximum for two § 922(q) offenses,
well above the advisory Guidelines range of 18 to 24 months.
With

respect

to

procedural

reasonableness,

Grant’s

primary

argument is that the district court erred by failing to address
separately
explained

the
its

§

5K2.21

departure

sentencing

decision.

and

the

variance

According

to

when

Grant,

it
the

district court was required to first rule on the government’s
request for a departure under § 5K2.21, and only then consider
any

potential

variance

under

§

3553(a)’s

sentencing

factors.

Because the court did not adhere to this sequence, Grant argues,
it failed to adequately explain what portion of its sentence was
based on a departure as opposed to a variance.
We rejected a nearly identical claim in United States v.
Diosdado-Star, 630 F.3d 359, 364-65 (4th Cir. 2011).

In light

of Rita v. United States, 551 U.S. 338 (2007), and Gall v.
United States, 552 U.S. 38 (2007), we reasoned, “the practical
effects of applying either a departure or a variance are the
same,” and the method by which a district court deviates from an
initial Guidelines range affects neither the justification that
court must provide nor the appellate review in which we engage.
630 F.3d at 365.

Whether a district court has relied on a

departure or a variance is “irrelevant,” we concluded, so long
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as

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either

is

Filed: 12/16/2016

justified,

and

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there

is

no

requirement

that

a

district court address a potential departure before considering
a variance.

Id. at 366.

Whether it applies a departure, a

variance, or both, what matters is only that the district court
give “serious consideration to the extent” of any deviation and
“adequately explain the chosen sentence.”

Id. (quoting Gall,

552 U.S. at 46, 50); United States v. Evans, 526 F.3d 155, 164
(4th Cir. 2008) (review of sentence does not depend on whether
departure or variance provides the basis for a deviation).
Under

that

standard,

we

can

find

no

sentencing procedures of the district court.
hearing,

the

district

court

provided

a

fault

with

the

At the sentencing

lengthy

and

careful

explanation for its upward deviation, analyzing Grant’s history
and the details of his offenses under the § 3553(a) factors.
The

district

court’s

obligation

was

to

“provide

a

rationale

tailored to the particular case at hand and adequate to permit
meaningful appellate review,” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks and citations
omitted), and it has amply satisfied that obligation here. 2

2

Grant also objects to certain isolated comments made by
the government and the district court during sentencing. Taken
in context, those comments do nothing to detract from the
adequacy of the district court’s explanation and are not
otherwise problematic.
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Finally,

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we

consider

Grant’s sentence.
represents

a

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the

substantive

reasonableness

of

We are mindful that Grant’s ten-year sentence

substantial

upward

deviation

from

the

advisory

Guidelines range of 18 to 24 months, and that the justification
for a sentence must “support the degree of the variance,” with a
“major

departure

justification

.

than

.
a

.

supported

minor

one.”

(quoting Gall, 552 U.S. at 50).

by

a

more

Evans,

526

significant
F.3d

at

161

At the same time, a significant

deviation from the Guidelines range does not render a sentence
presumptively unreasonable, and we show “due deference to the
district court’s decision that the § 3553(a) factors, on the
whole,

justify

the

extent

of

the

variance.”

Id.

at

161-62

(quoting Gall, 552 U.S. at 51).
Taking into account the “totality of the circumstances,” as
we must, id. at 161, we find no abuse of discretion in the
district

court’s

sentencing

determination.

As

the

district

court emphasized at the start of Grant’s sentencing hearing, the
ten-year

sentence

it

ultimately

imposed

was

substantially

shorter than the fifteen-year mandatory minimum Grant would have
faced under his original indictment, but for the plea agreement
offered by the government.

Section 5K2.21 of the Guidelines, on

which the district court relied, addresses just this situation,
and allowed for an upward departure based on the § 922(g) felonin-possession

charges

dismissed
14

under

the

plea

agreement.

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Moreover, as the district court emphasized, Grant had a lengthy
criminal

history,

engaged

in

a

repeated

pattern

of

unlawful

possession of a firearm over a short period of time, had in his
car

items

indicative

of

drug

distribution,

involved

his

girlfriend in his illegal activities, and twice initiated highspeed and dangerous car chases that put others at serious risk.
Under the “deferential abuse-of-discretion standard,” Evans, 526
F.3d at 166 (quoting Gall, 522 U.S. at 41), we have no ground to
disturb the district court’s judgment that a ten-year prison
sentence was warranted in this case.

IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED

15