US v. Edward Gregory, No. 12-4147 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4147 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWARD LEE GREGORY, a/k/a Eddie Lee Gregory, a/k/a Eddie Gregory, 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-01030-JFA-1) Submitted: September 27, 2012 Decided: October 1, 2012 Before MOTZ, DAVIS, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Jeffrey Mikell Johnson, Robert F. Daley, Jr., William K. Witherspoon, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Edward Lee Gregory pled guilty to possession of firearms in violation of 18 U.S.C.A. §§ 922(g)(1), 924(a)(2), 924(e) (West 2000 & Supp. 2011). The district court granted the Government s motion for a downward departure based on Gregory s substantial assistance, and sentenced Gregory to 130 months, the bottom of the Guidelines range. On appeal, Gregory contends that erred by applying firearm in connection the district enhancement for use court of a a four-level with another felony, USSG § 2K2.1(b)(6), * and abused its discretion by denying Gregory s request for a sentence below the mandatory minimum based on factors in addition to his substantial assistance to the Government. The We affirm. Sentencing Guidelines provide for a four-level enhancement to a defendant s advisory Guidelines range if the defendant used or possessed any firearm connection with another felony offense. or ammunition in USSG § 2K2.1(b)(6)(B). Trading a firearm for drugs constitutes use of a firearm in relation to a drug trafficking offense. Smith v. United States, 508 U.S. 223, 227 (1993); United States v. Garnett, 243 F.3d 824, 829 (4th Cir. 2001). Here, Gregory facilitated the sale of firearms from Joseph Patterson to John Bennett. * Gregory U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) (2011). 2 took possession of the firearms and delivered them to Bennett in exchange for $3,600 cash, a pound of marijuana, and some pills. Gregory gave the money and the marijuana to Patterson, who gave Gregory $200 and a quarter pound of marijuana. Because Gregory exchanged the firearms for money and drugs, the district court properly applied the enhancement, finding that the use of the firearm was in relation to the felony offense of possession with intent to distribute marijuana. Gregory was correctly determined to be an Armed Career Criminal, subject to the mandatory minimum 180-month sentence. 18 U.S.C. § 924(e) (2006). departure based on The Government moved for a downward Gregory s substantial assistance, and the court granted a four-level departure, making Gregory s advisory Guidelines range 130 to 162 months. Gregory requested a sentence below this Guidelines range based on the fact that, between the time of the offense, October 2005, and the time he was indicted in October 2010, Gregory stopped using drugs, quit his criminal lifestyle, and maintained lawful employment. He argues that his sentence is unreasonable because the district court failed to give him any credit for his extraordinary post-offense, pre-indictment selfrehabilitation. District courts have [l]imited authority to impose a sentence below a statutory minimum. 3 18 U.S.C. § 3553(e) (2006). motion Such authority is granted when the Government makes a for a reduced sentence based on the defendant s substantial assistance in the investigation or prosecution of another person who has committed an offense. However, Id. the extent of a § 3553(e) departure is based solely on the defendant s substantial assistance and other factors related to United States v. Hood, 556 F.3d 226, 234 n.2 that assistance. (4th Cir. 2009); see United States v. A.B., 529 F.3d 1275, 1285 (10th Cir. 2008) (holding that district court lacks authority to depart further below statutory minimum after granting departure based on substantial assistance). The district court properly exercised its authority to depart below the statutory Government s motion. not abuse its mandatory minimum based on the We conclude that the district court did discretion in considering the serious and prolonged nature of Gregory s criminal history, as well as his extraordinary self-rehabilitation and other sentencing factors, and imposing a 130-month sentence the bottom of the advisory Guidelines range. 51 (2007) See Gall v. United States, 552 U.S. 38, 46, (providing standard of review); United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) (applying appellate presumption of reasonableness to within-Guidelines Accordingly, we affirm Gregory s sentence. oral argument because the facts 4 and legal sentence). We dispense with contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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