US v. Johnnie Gray, No. 11-4541 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4541 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOHNNIE B. GRAY, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:10-cr-01029-JFA-1) Submitted: September 9, 2011 Decided: September 16, 2011 Before KING, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Langdon D. Long, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Dean A. Eichelberger, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnnie B. Gray pleaded guilty without the benefit of a plea agreement to copyright infringement, in violation of 17 U.S.C. § 506(a)(1) (2008) and 18 U.S.C. § 2319(b)(1) (2008). He was sentenced to twenty-four months imprisonment. The sole issue presented on appeal is whether, for purposes of a twolevel enhancement pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 2B5.3(b)(3)(A) (2010), Gray manufactured infringing items. We affirm. In assessing a sentencing court s application of the Guidelines, factual we review findings 281 its for legal clear (4th conclusions error. Cir.), United cert. de novo States denied, v. and its Mehta, 594 F.3d 277, (2010). A district court may apply a sentencing enhancement if 131 S. it is supported by a preponderance of the evidence. Ct. 279 United States v. Blauvelt, 638 F.3d 281, 293 (4th Cir. 2011), petition for cert. filed, 79 U.S.L.W. 3712 (U.S. June 6, 2011) (No. 101473). The Guidelines allow for a two-level increase of a defendant s offense level manufacture, importation, USSG § 2B5.3(b)(3)(A). infringing materials, when or the uploading offense of involved infringing the items. Here, Gray not only bought and resold but he personally materials using equipment found in his home. 2 created infringing We application therefore of the conclude enhancement that was the not district clearly court s erroneous. Accordingly, we affirm the judgment of the district court. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3

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