                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-20-2006

USA v. Gray
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3416




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"USA v. Gray" (2006). 2006 Decisions. Paper 1236.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-3416


                           UNITED STATES OF AMERICA

                                           v.

                                   KEVIN L. GRAY,
                                also known as GOLDIE,

                                                Kevin L. Gray,
                                                      Appellant



                     Appeal from the United States District Court
                        for the Western District of Pennsylvania
                      (D.C. Criminal Action No. 04-cr-00109-2)
                    District Judge: Honorable Thomas M. Hardiman


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 20, 2006

                   Before: SLOVITER and AMBRO, Circuit Judges,
                             and DuBOIS,* District Judge

                            (Opinion filed : April 20, 2006)


                                       OPINION

AMBRO, Circuit Judge


      *
       Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
          Kevin Gray appeals the sentence entered by the United States District Court for the

Western District of Pennsylvania on July 7, 2005. Gray contends that the District Court

erred in calculating his sentence under the Sentencing Guidelines. We disagree, and thus

affirm.

                                                I.

          Because we write for the parties, we only briefly recount the relevant facts. In

September 2004, a federal grand jury returned a superseding indictment charging Gray

and two co-conspirators with conspiracy to distribute and possess with intent to distribute

five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 846. At trial, two

cooperating witnesses (also participants in the conspiracy), Garry Smith and Thomas

Gilliam, testified that they delivered or discussed delivering multiple kilograms of

cocaine to Gray for distribution. The jury convicted Gray of the lesser included offense

of conspiracy to distribute and possess with intent to distribute at least 500 grams, but less

than 5 kilograms, of cocaine.

          At sentencing, the District Court determined that, based on the testimony of Smith

and Gilliam, there was sufficient evidence to conclude that the amount of cocaine

attributable to Gray was between 3.5 and 5 kilograms, which resulted in a Guidelines

offense level of 30 and (with Gray’s criminal history category I) a sentencing range of 97-

121 months in prison. Gray objected, arguing that the evidence at trial did not support

such a finding; rather, Gray asserted that the District Court should adopt the lowest


                                                2
amount attributable that the jury’s verdict would support — between 500 grams and 2.5

kilograms — which would yield an offense level of 26 and a sentencing range of 63-78

months in prison. The District Court overruled this objection and, after considering

Gray’s circumstances and history, sentenced him to 97 months in prison and 5 years of

supervised release. Gray appealed.1

                                              II.

       In sentencing a defendant, a District Court must engage in a two-step inquiry.

First, the Court must correctly calculate the defendant’s recommended sentence under the

Guidelines, applying a preponderance of the evidence standard to the determination of

sentencing facts. United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). Next, the

Court must decide whether the Guidelines sentence comports with the other factors set

forth in 18 U.S.C. § 3553(a), and thus determine whether to follow the Guidelines

recommendation. Id. We review the resulting sentence for reasonableness. See United

States v. Booker, 543 U.S. 220, 261 (2005); Cooper, 437 F.3d at 326-27. In conducting

this review, we accept the District Court’s determination of sentencing facts unless it is

clearly erroneous. United States v. Irvin, 369 F.3d 284, 286 n.2 (3d Cir. 2004); see

United States v. Yeung, 241 F.3d 321, 322 (3d Cir. 2001) (noting that we “review for

clear error the District Court’s factual findings as to the quantity of drugs” attributable to



       1
        The District Court had jurisdiction over this case under 18 U.S.C. § 3231, and
we exercise jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742.

                                               3
the defendant for sentencing purposes).

                                            III.

       Our review of the testimony in this case leaves no doubt that the District Court’s

determination of drug quantity was not clearly erroneous. Although Gray was tried for

his role in possessing and distributing cocaine from a particular supplier (Terrence Cole),

and some of Smith’s and Gilliam’s testimony concerned cocaine from other suppliers,

their testimony clearly establishes that Gray was involved in a conspiracy to possess and

distribute at least 3.5 kilograms of cocaine. Gilliam testified, for example, about specific

occasions when he sold Gray two kilograms of Cole’s cocaine and Smith sold Gray about

1.25 kilograms. Smith related a specific conversation in which Gray tried to purchase 1.5

kilograms of cocaine, which certainly fell within the bounds of the conspiracy. In

addition to these particular instances, Smith testified that Gray would attempt to get lower

prices on cocaine “all the time,” and Gilliam stated that he sold “one or two” kilograms of

Cole’s cocaine to Gray “[o]ver 50 times.” A district court must often estimate the drug

quantity attributable to a defendant based on the totality of the evidence. See United

States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999). In this case, we find no clear error in

the Court’s conclusion that at least 3.5 kilograms of cocaine was attributable to Gray.

       Beyond the proper calculation of the Guidelines range, Gray raises no other

challenges to the reasonableness of his sentence. As we noted in Cooper, “[a]ppellants

. . . bear the burden of proving the unreasonableness of sentences on appeal,” and since

Gray does not seek to establish unreasonableness on any other ground, we need not

                                              4
consider the matter further. The sentence is affirmed.




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