US v. Darius Galloway, No. 12-4222 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4222 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARIUS LAMONT GALLOWAY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:07-cr-00036-F-1) Submitted: November 7, 2012 Decided: November 16, 2012 Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Darius Lamont Galloway was convicted by a jury of possession with intent to distribute at least five but less than fifty grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count One); possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006) (Count Two); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006) (Count Three). The district court sentenced Galloway as a career offender to a total sentence of 360 months imprisonment. In Galloway s prior appeal, we affirmed his convictions, vacated his sentence, and remanded for resentencing in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). United States v. Galloway, 459 F. App x 232 (4th Cir. 2011) (No. 09-4843), cert. denied, 132 S. Ct. 2699 (2012). On remand, the district court held Galloway accountable for 4.5 ounces of cocaine, 50.1 grams of crack, and 63.1 grams of marijuana. The court sentenced Galloway to a within-Guidelines sentence of 110 months imprisonment on Counts One and Two concurrent, followed by a consecutive sentence of sixty months amended imprisonment sentence of 170 on Count months Three, yielding imprisonment. On a total appeal, Galloway argues that the district court erroneously relied upon acquitted conduct in determining 2 the drug quantities attributable to him for sentencing purposes. In addition, Galloway contends that the Government failed to establish the drug quantities for purposes of relevant conduct by a preponderance of the evidence. We review a sentence for procedural and substantive reasonableness, applying an abuse of discretion standard. v. United States, 552 U.S. 38, 41 (2007). Gall In determining the procedural reasonableness of a sentence, we consider whether the district court properly calculated the Guidelines range, treated the Guidelines as advisory, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Gall, 552 U.S. at 51. We reject Galloway s argument that the district court erroneously considered acquitted advisory Guidelines range. conduct in determining his The Sentencing Guidelines require a sentencing court to consider relevant conduct in calculating a defendant s advisory Guidelines range, including all acts and omissions . . . that were part of the same course of conduct or common scheme Sentencing United or plan Guidelines States v. as the Manual Hayes, 322 offense of ( USSG ) F.3d 792, conviction. § 1B1.3(a)(2) 802 (4th U.S. (2011); Cir. 2003) (noting that a court has no discretion to disregard relevant conduct when calculating offense level). 3 The sentencing court is not bound determining by drug the evidence quantity or presented other at relevant trial conduct, when United States v. Young, 609 F.3d 348, 357 (4th Cir. 2010), and may consider acquitted conduct in establishing drug amounts for the purpose of sentencing, so long as the amounts are established by a preponderance of the evidence. United States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009). Galloway next asserts that the Government failed to establish the drug quantities preponderance of the evidence. attributed to him by a We review the district court s calculation of the quantity of drugs attributable to a defendant for sentencing Fullilove, occurs purposes 388 when, F.3d for 104, although 106 there clear (4th is error. Cir. United 2004). evidence to States Clear support v. error it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008) (citation and internal quotation marks omitted). In calculating drug amounts for sentencing purposes, a sentencing court may give weight to any uncorroborated sufficient relevant hearsay, indicia of information provided reliability that to before the support it, including information its has accuracy. United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). Our review of the record confirms 4 that the Government established the relevant drug quantities by a preponderance of the evidence. We therefore affirm the district court s judgment. We deny Galloway s pro se motion for leave to file a supplemental brief. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5

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