United States v. Ray, No. 14-1711 (8th Cir. 2014)

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Defendant appealed his sentence after pleading guilty to possessing with intent to distribute at least five grams of methamphetamine and possessing a firearm in furtherance of this drug trafficking crime. The court concluded that the district court did not procedurally err by applying a two-level obstruction-of-justice enhancement under U.S.S.G. 3C1.1 where defendant absconded from the drug treatment facility in violation of his pretrial release conditions and where he failed to appear at his court ordered change-of-plea hearing. The court also concluded that the district court weighed the 18 U.S.C. 3553(a) factors in sentencing defendant to the 100 months of prison he received for the possession charge and the court fairly reasoned that there was a substantial risk that defendant would commit additional crimes. Accordingly, the court affirmed the sentence.

Court Description: Criminal case - Sentencing. The district court did not err in imposing a two-level obstruction of justice enhancement under Guidelines Sec. 3C1.1 based on defendant's escape from a drug treatment center prior to his change-of-plea proceeding; the district court weighed the 3553(a) factors, including defendant's arguments regarding his upbringing and potential for recidivism, and the 100-month sentence for possession of methamphetamine it imposed was not unreasonable.

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 14-1711 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Daniel T. Ray lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the District of Nebraska - Omaha ____________ Submitted: November 11, 2014 Filed: November 18, 2014 ____________ Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges. ____________ RILEY, Chief Judge. A grand jury indicted Daniel T. Ray for possessing with intent to distribute at least five grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii), and possessing a firearm in furtherance of this drug trafficking crime in violation of 18 U.S.C. § 924(c). While on pretrial release, Ray was to reside at a residential drug treatment facility and follow facility rules. On October 17, 2013, at Ray’s request, the magistrate judge ordered Ray to appear for a change-of-plea hearing on November 7, 2013. Three days before the hearing, Ray slipped away from the treatment facility after curfew and did not return. With Ray still missing on November 6, 2013, the magistrate judge issued a warrant for his arrest. Ray did not appear at the November 7 hearing. Arrested the next day, Ray ultimately pled guilty to both counts. The district court1 sentenced Ray to 160 months imprisonment (100 months for methamphetamine possession and a consecutive 60 months for firearm possession). Ray appeals his sentence. I. DISCUSSION A. Obstruction-of-Justice Enhancement Ray argues the district court procedurally erred by applying a two-level obstruction-of-justice enhancement in United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 3C1.1. The enhancement applies to, among other things, “escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding.” U.S.S.G. § 3C1.1 cmt. n.4(E). By absconding from the drug treatment facility in violation of his pretrial release conditions, Ray escaped “from custody” within the meaning of U.S.S.G. § 3C1.1. See Hayes v. United States, 281 F.3d 724, 725 (8th Cir. 2002). Ray also satisfied § 3C1.1 by failing to appear at his court ordered change-ofplea hearing. Ray claims he was at the courthouse on the day of the hearing and left without appearing in court. He argues his nonappearance “did not cause the court . . . any material delay or expense.” But unlike United States v. Peters, 394 F.3d 1103 (8th Cir. 2005), to which Ray compares his case, Ray’s plea hearing was scheduled weeks in advance, he gave no explanation for his absence, and he never requested a continuance. Compare Peters, 394 F.3d at 1106 (excusing the defendant’s failure to appear at the hearing scheduled on short notice where the defendant had informed her 1 The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska. -2- attorney of her inability to attend the hearing, leading her attorney to move successfully for a continuance). Ray’s plea hearing was cancelled and rescheduled because Ray chose not to attend, leaving the magistrate judge sitting on the bench waiting for Ray to appear. Ray’s actions also forced the government to expend time and manpower to apprehend him and required an additional revocation hearing before the rescheduled plea hearing. The delay and extra work were material. The district court did not err in applying U.S.S.G. § 3C1.1. B. Sentence Reasonableness Challenging only the 100 months in prison he received for possession of methamphetamine, Ray urges the district court gave “too little weight to the traumatic effects of his dysfunctional upbringing” and “overestimat[ed] the likelihood Ray would commit future crimes.” Ray’s calculated advisory Guidelines range was 100 to 125 months (offense level 25, category V). “A sentence,” like Ray’s, “which falls within the guideline range is presumed to be reasonable, and district courts are allowed ‘wide latitude to weigh the § 3553(a) factors in each case and assign some factors greater weight than others in determining an appropriate sentence.’” United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014) (quoting United States v. Maxwell, 664 F.3d 240, 247 (8th Cir. 2011)). Our careful review of the record shows Ray cannot overcome this presumption, and the district court did not abuse its considerable discretion. See Gall v. United States, 552 U.S. 38, 51-52 (2007) (standard of review). The district court weighed the § 3553(a) factors and fairly reasoned as follows: The defendant . . . [has] been a troubled young man, young boy, for a very long time. There is a very substantial risk that this young man will commit additional crimes. Therefore, a long prison sentence . . . taking him out of circulation for a long period of time, I believe, is required. -3- II. CONCLUSION We affirm. ______________________________ -4-

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