United States v. McCoy, No. 14-4745 (4th Cir. 2015)
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Defendant was convicted of conspiracy and possession with intent to distribute cocaine. On appeal, he challenged his 188-month sentence as substantively unreasonable. The court concluded that the district court did not abuse its discretion in considering defendant's violent juvenile crimes; the increase in the criminal history category does not raise the issue of “unwarranted sentencing disparities” identified in United States v. Howard; the record does not support defendant's argument that the third sale was a replacement, nor would the district court have abused its discretion by basing the base offense level calculation on seven kilograms even if it did constitute a replacement; and the proper avenue for a request for application of Amendment 782 is a motion under 18 U.S.C. 3582(c)(2), which would allow the district court to assess in the first instance whether and to what extent the amendment may affect defendant’s sentence. Accordingly, the court concluded that the sentence was substantively reasonable and affirmed the judgment.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4745 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DILADE MCCOY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:14-cr-00044-REP-2) Argued: September 17, 2015 Decided: October 15, 2015 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge King and Judge Gregory joined. ARGUED: Gregory Bruce English, ENGLISH LAW FIRM, PLLC, Alexandria, Virginia, for Appellant. Angela Mastandrea-Miller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. DIANA GRIBBON MOTZ, Circuit Judge: Dilade McCoy challenges as substantively unreasonable his 188-month sentence for conspiracy and possession with intent to distribute cocaine. We affirm. I. In 2014, a federal grand jury indicted McCoy for conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, possession cocaine, with in in violation intent violation to of of 21 distribute 21 U.S.C. U.S.C. 500 § § grams 841(a), 846 (2012); or more of (b)(1)(B)(ii) (2012); and possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012). defendant testified occasions: to buying cocaine At trial, his co- from McCoy on three an early summer 2013 sale of one kilogram, a late summer 2013 sale of three kilograms that were returned for poor quality, and a November 2013 sale of three kilograms. The jury found McCoy guilty of the drug-related charges for an amount of cocaine greater than 500 grams but less than 5 kilograms. In the Presentence Investigation Report (PSR), the probation officer counted all three sales and attributed seven kilograms of cocaine to McCoy, above the range the jury found. Pursuant to the U.S. Sentencing Guidelines Manual § 2D1.1(c)(4) (U.S. Sentencing Comm’n 2013), 2 the PSR pegged McCoy’s base offense level at history category 32. as The II, PSR calculated reflecting three McCoy’s points criminal for a 2005 conviction for criminal possession of cocaine with intent to distribute. The resulting advisory Guidelines range was 135 to 168 months’ imprisonment. McCoy objected to the amount of cocaine attributed to him, arguing that he should be held accountable only for the amount of cocaine found by the jury, which would reduce his base offense level to 30 and Guidelines range to 108 to 120 months. He sought a term of imprisonment no greater than the statutory mandatory minimum sentence of 120 months. The Government moved for an upward departure, arguing that McCoy’s criminal history category understated the seriousness of his criminal past. While a juvenile, McCoy felonies, for which he was tried as an adult. robberies in imprisoned. 1986 at age 15, was committed three He committed two convicted of both and In 1989, at age 17 and one year after his release from prison, he committed another violent crime, pleading guilty to assault with intent to cause serious injury with a weapon. For that offense, he served eight years in prison. He was discharged from parole in 2000 and arrested less than five years later, resulting in the 2005 conviction for criminal possession of cocaine. Because McCoy committed the robberies and assault more than fifteen years before the present offenses, the PSR did 3 not count them in determining his criminal pursuant to Guidelines § 4A1.2(e)(3). history category To reflect the juvenile convictions, the Government requested an increase to criminal history category IV and a sentence of 192 months, which within the applicable 168-to-210 month Guidelines range. is McCoy objected to consideration of his juvenile convictions because of their remoteness and his youth at the time of the offenses. The district court rejected McCoy’s objection to the amount of cocaine attributed to him. In response to the Government’s motion for upward departure, the court observed that McCoy’s criminal history was “quite serious” and that “the facts here call for the application of [§] 4A1.3,” which governs upward departures based on the inadequacy of a defendant’s criminal history category. resulting in an The court additional counted eight all three points, convictions, placing McCoy in criminal history category V with a Guidelines range of 188 to 235 months’ months’ imprisonment. imprisonment, The court explaining sentenced that the McCoy to departure 188 was “necessary to protect the public from the defendant, to promote respect for the law, to deter the defendant, and to deter others 4 similarly situated.” McCoy noted a timely appeal of this sentence. 1 We review a sentence for deferential abuse-of-discretion States, U.S. 552 38, 41 reasonableness standard.” (2007). The “under Gall same v. standard a United applies whether the sentence is “inside, just outside, or significantly outside the Guidelines range.” Id. However, a “major departure” from the Guidelines range “should be supported by a more significant justification than a minor one.” Id. at 50. In reviewing a departure from the advisory Guidelines range, we “defer to the trial court and can reverse a sentence only if it is unreasonable, even if the sentence would not have been [our] choice.” United States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008) (emphasis omitted). II. McCoy makes no claim that his sentence is procedurally unreasonable, but he poses several challenges to the substantive reasonableness of his sentence. Each argument fails. 1 McCoy filed a pro se supplemental brief in which he also challenges the sufficiency of the evidence. After thorough review of these arguments, we find that they lack merit. 5 A. First, McCoy asserts that his sentence is substantively unreasonable because the district court “improperly considered” his stale juvenile convictions. Appellant’s Br. 15. He argues that these crimes, which he committed between the time he was 15 to 17 before years he old, and committed which the occurred instant approximately crimes, do not 25 years justify the district court’s upward departure. Section 4A1.3(a)(1) of the Guidelines authorizes an upward departure when defendant’s “reliable criminal information history category indicates that substantially the under- represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1); see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008) (noting that an under-representative criminal history category is an “encouraged” basis for upward departure). A court departure a defendant’s on may base a prior Guidelines § convictions, 4A1.3 even upward if those convictions are too old to be counted in the calculation of the Guidelines range under Guidelines § 4A1.2(e). U.S.S.G. §§ 4A1.2(e) cmt. n. 8, 4A1.3(a)(2)(A). The category district court found under-represented warrant an upward departure. that his McCoy’s criminal criminal history history enough to The court recognized McCoy’s youth 6 at the time he committed the robberies and the assault with intent to cause serious injury with a weapon. recognized the offenses. But given the seriousness of the juvenile crimes and the that fact remoteness McCoy of these committed crimes The court also another from his crime -- present criminal possession of cocaine -- within five years of being released from prison court found on the that third juvenile counting the charge juvenile (the assault), felonies in the McCoy’s criminal history better represented that “serious” history and his likelihood of recidivism. Relying heavily on our recent decision in United States v. Howard, 773 F.3d 519 (4th Cir. 2014), McCoy maintains that the district Howard, court we enormous held abused that departure its the from discretion imposition the in so of 121-month a top reasoning. life of sentence, the In an Guidelines range, on the basis of juvenile, non-violent, stale convictions, constituted an abuse of discretion. 535-36. hand. Howard is clearly Howard, 773 F.3d at 528, distinguishable the case at For here the court imposed a much more modest upward departure (from 168 months violent juvenile crimes. to 188 months) v. Myers, 589 on the basis of We have found reasonable far greater upward departures based on similar facts. States from F.3d 117 (4th See, e.g., United Cir. 2009) (finding reasonable an upward departure from 121 months to 360 months 7 based on three stale convictions); United States v. Lawrence, 349 F.3d 724, 727 (4th Cir. 2003) (finding reasonable an upward departure from 96 months to a total of 262 months based in part on the defendant’s “extensive juvenile record”). The district court here departed upward a number of months that “pale[s] in comparison to” the upward departure in Howard, 773 F.3d at 530, and did not abuse its discretion in considering McCoy’s violent juvenile crimes in doing so. B. Second, McCoy argues that his sentence is substantively unreasonable because the district court increased his criminal history category to V, even though the Government only requested an increase to category IV. He again seeks to analogize his case to Howard, where we recognized that, although “no district court is ever mandated to impose the sentence recommended by the prosecution,” it was notable that the district court’s sentence of life imprisonment was far longer than the 360-month sentence advocated by the Government. out that important sentencing the Government’s pillar” in 773 F.3d at 533-35. recommendation achieving disparities,” one of “the the “can avoidance principle Sentencing Reform Act of 1984 and the Guidelines. We stand by those observations, but they We pointed serve of as an unwarranted goals of the Id. at 535. do not assist McCoy for, although the district court increased his criminal 8 history category above the Government’s request, the sentence of 188 months was Government. lower than Furthermore, the had 192 months district the requested court by the increased McCoy’s criminal history category to IV, as requested by the Government, a sentence of 188 months would still have fallen within the resulting Guidelines range of 168 to 210 months. Thus, this increase in the criminal history category does not raise the issue of “unwarranted sentencing disparities” identified in Howard. C. Third, McCoy maintains that seriousness of his offense. his sentence overstates the He argues that the three-kilogram order placed in November 2013 merely replaced the three-kilogram order returned in the summer of 2013. McCoy concedes that all seven kilograms “can properly be considered” in the “technical determination” of his base offense level. Appellant’s Br. 18. However, he contends that the district court should have used its discretion to depart downward to a base offense level of 30, based only “reality” Appellant’s on four of how Br. kilograms much 18-19. of cocaine The record cocaine, he does to reflect actually not the trafficked. support McCoy’s argument that the third sale was a replacement, nor would the district court have abused its discretion by basing the base offense level calculation on seven 9 kilograms even if it did constitute a replacement. See United States v. Young, 609 F.3d 348, 357 (4th Cir. 2010). D. Lastly, McCoy argues that his sentence is substantively unreasonable because Amendment 782 to the Guidelines went into effect shortly retroactive after he amendment was that sentenced. lowered applicable to drug-related crimes. the Amendment base 782 offense is a levels Post-sentencing Guidelines amendments do not make a pre-amendment sentence unreasonable. See United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008). The district court correctly applied the Guidelines prevailing at the time of sentencing. application of Amendment The proper avenue for a request for 782 is a motion under 18 U.S.C. § 3582(c)(2), which would allow the district court to assess in the first instance whether and to what extent the amendment may affect McCoy’s sentence. Id. 2 III. For the foregoing reasons, the judgment of the district court is AFFIRMED. 2 Our holding as to the substantive reasonableness of McCoy’s sentence is rendered without prejudice to McCoy’s right to pursue such relief in the district court. 10
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