US v. Gregory Easterling, No. 13-4141 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4141 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY Foster, DONEARL EASTERLING, a/k/a Smoke, a/k/a Dion A. Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:12-cr-00013-1) Submitted: November 25, 2013 Decided: March 24, 2014 Before AGEE, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas J. Gillooly, Charleston, West Virginia, for Appellant. Richard Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gregory month sentence Donearl imposed Easterling by the appeals district the court eighty-four- following his guilty plea to possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a) (2012), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2012). In accordance with Anders v. California, 386 U.S. 738 (1967), Easterling s counsel has filed a brief certifying that there are no meritorious grounds for appeal but questioning whether the evidence before the district court was sufficient to sustain its determination that one toward of the category. Easterling s prior calculation of convictions Easterling s properly criminal counted history Easterling has filed a supplemental brief in which he echoes and supplements counsel s arguments. Finding no error, we affirm. We review Easterling s sentence using an abuse of discretion standard. 552 U.S. 38, 51 (2007). procedural error[s], for reasonableness, Gall v. United States, We must first review for significant including improperly calculating the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2012) factors, sentencing under clearly failing to adequately explain the sentence. erroneous facts, or Gall, 552 U.S. at 51; United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). 2 Only if consider we find its a sentence substantive procedurally reasonableness. preserved the issue, we review may we States United Carter, 564 F.3d 325, 328 (4th Cir. 2009). properly reasonable v. Because Easterling for clear error the district court s findings of fact underlying its calculation of Easterling s criminal history category. United States v. McManus, 23 F.3d 878, 882 (4th Cir. 1994); United States v. Rusher, 966 F.2d 868, 880 (4th Cir. 1992). A bit of background information is necessary. Easterling was convicted of a Michigan narcotics offense in June 1995 and received ( 1995 offense ). absconded from an eighteen-month to twenty-year sentence Easterling was paroled in November 1996. parole in April 1997 and committed a He second Michigan narcotics offense in September 1997 ( 1997 offense ), for which he was sentenced to one to four years of imprisonment. Easterling was again paroled in September 1998. Easterling s parole was revoked in February remained incarcerated until January 2003. Thereafter, 2000, and he Easterling remained on parole until July 2010, at which point he was unconditionally discharged. However, the Michigan state records detailing Easterling s incarceration history were unclear regarding which of his two sentences supported Easterling s approximate threeyear incarceration following the revocation of his parole in 3 February 2000. Attempting to explain the ambiguity, Easterling suggested that the sentence for his 1995 offense was discharged as part of sentence the for subsequent plea his to 1997 his 1997 offense incarceration. offense, as the Therefore, thus sole leaving basis the his argued, Easterling for his 1995 offense fell outside the applicable fifteen-year window. U.S. Sentencing Guidelines Manual ( USSG ) § 4A1.2(e)(1) (2012). Although argued failing that, logical to under supporting records, typical sentencing practices, of seemingly unclear explanation records. produce the Easterling this was Michigan a state An examination of Michigan s sentencing and parole scheme, however, indicates otherwise. The maximum term of imprisonment or period of parole Easterling years, could meaning have that, served if in for his 1997 offense fact the sentence for was four his 1995 offense was discharged as part of a plea agreement, Easterling would have been subject to unconditional Michigan penal system in 2001. release from the See Shaya v. Holder, 586 F.3d 401, 408 (6th Cir. 2009) (explaining that, in Michigan, there is no guarantee that an incarcerated person will be released from prison after the person has completed his or her minimum sentence [because] the parole board retains the discretion to keep a person incarcerated up to the maximum sentence authorized by the jury s verdict ) (internal quotation marks and alteration 4 omitted); People v. Matelic, 641 N.W.2d 252, 264 (Mich. Ct. App. 2001), overruled in part on other grounds by People v. Stewart, 698 N.W.2d 340 (Mich. 2005). indicate that, following February 2000, Easterling 2003, necessarily pursuant to However, the state records clearly the remained indicating the revocation sentence that for of his incarcerated Easterling his conviction for his 1997 offense. 1995 parole until was in January incarcerated offense following This conclusion is further confirmed by Michigan court records indicating that the sentence for Easterling s 1997 offense was imposed to run consecutively to the sentence for his 1995 offense, as Michigan law dictates. See People (Michigan v. Idziak, requires 773 consecutive reoffend while released). is no clear error N.W.2d in 616, 621-22 sentencing for (Mich. 2009) parolees who Accordingly, we conclude that there the district court s calculation of Easterling s criminal history category. In accordance with Anders, we have reviewed the entire record and have found no meritorious grounds for appeal. therefore affirm the district court s judgment. to address, in problems with properly addressed ineffective conclusively the this appeal, Easterling s prison s mail in criminal assistance this of demonstrate system, counsel, any 5 a We also decline claim civil appeal, or as record the deficiencies We regarding matter his in claim does not of not counsel s performance. This court requires that counsel inform Easterling, in writing, of his right to petition the Supreme Court of the United States for further review. If Easterling requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Easterling. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6

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