US v. Levelle Grant


UNPUBLISHED AUTHORED OPINION filed.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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Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 1 of 15 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4750 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEVELLE GRANT, Defendant - Appellant.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 Affirmed by unpublished opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 2 of 15 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, 2 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 a set of scales, and cash. Pg: 3 of 15 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 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 4 of 15 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 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 5 of 15 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 5 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 6 of 15 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. 6 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 7 of 15 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 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 8 of 15 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 8 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 9 of 15 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 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 10 of 15 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). 10 Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 11 of 15 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 Appeal: 15-4750 Doc: 41 As noted Filed: 12/16/2016 above, the Pg: 12 of 15 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 12 Appeal: 15-4750 as Doc: 41 either is Filed: 12/16/2016 justified, and Pg: 13 of 15 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. 13 Appeal: 15-4750 Doc: 41 Finally, Filed: 12/16/2016 we consider Grant’s sentence. represents a Pg: 14 of 15 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. Appeal: 15-4750 Doc: 41 Filed: 12/16/2016 Pg: 15 of 15 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

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