                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 15-4222


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JEFFREY GREGORY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:13-cr-00334-JFM-1)


Submitted:   January 20, 2016             Decided:   February 4, 2016


Before NIEMEYER and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Michael C. Hanlon, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Between      2008    and     2009,       Jeffrey          Gregory,       along       with    a

coconspirator, engaged in a series of straw firearm purchases.

Because Gregory was a convicted felon, he was unable to legally

purchase the firearms.             Gregory’s coconspirator filled out the

paperwork required to purchase the firearms, then transferred

the firearms to Gregory.               As a result of these straw purchases

and other illegal activities, Gregory was indicted for numerous

charges     in    federal       court.          In       2010,       pursuant        to    a    plea

agreement,       Gregory    pled    guilty          to    possession       of    a     Ruger      .45

caliber firearm by a felon, in violation of 18 U.S.C. § 922(g)

(2012), and possession of an Intratec 9mm handgun in furtherance

of drug trafficking, in violation of 18 U.S.C. § 924(c) (2012).

      In 2011, while in federal custody, Gregory was arrested by

state authorities and charged with the 2009 first-degree murder

of    Carlos     Botello.          The    state          prosecution          was     eventually

dismissed        with    prejudice        because             the     state     violated         the

Interstate Agreement on Detainers Act.                              After the dismissal of

the   state      case,    in    2013     the    federal         government           obtained      an

indictment       against       Gregory,        charging         him    with,        inter      alia,

making a false statement in connection with the acquisition of

the   Ruger      .45     caliber    handgun,             in    violation        of    18       U.S.C.

§ 922(a)(6) (2012), and possession of a separate firearm by a

felon, in violation of 18 U.S.C. § 922(g).

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       Gregory     moved       to    dismiss        these    counts    based     on      alleged

Fifth      Amendment     due        process     and    double       jeopardy     violations.

After      the   district       court         denied    Gregory’s       motions,         Gregory

entered into a conditional Rule 11(c)(1)(C) plea agreement with

the   Government,        wherein         he    reserved     his     right   to   appeal       the

denial of his motions to dismiss.                           On appeal, Gregory argues

that his Fifth Amendment due process rights were violated by the

lengthy preindictment delay that occurred.                             He further argues

that the Fifth Amendment Double Jeopardy Clause was violated by

his    conviction        for    false         statements     in     connection       with     the

acquisition of the Ruger handgun.                      For the reasons that follow,

we affirm.

       We review due process claims de novo.                            United States v.

Westbrooks,       780    F.3d       593,      595    (4th    Cir.    2015).          The    Fifth

Amendment Due Process Clause requires dismissal of an indictment

if    it   is    shown    that       a   “pre-indictment          delay     .    .   .     caused

substantial prejudice to [a defendant’s] rights to a fair trial

and that the delay was an intentional device to gain tactical

advantage over the accused.”                    United States v. Marion, 404 U.S.

307, 324 (1971).           We conduct “a two-pronged inquiry to evaluate

a defendant’s claim that pre-indictment delay violated his right

to due process.”          United States v. Uribe-Rios, 558 F.3d 347, 358

(4th Cir. 2009).           First, we examine “whether the defendant has

satisfied his burden of proving actual prejudice” and, if so, we

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consider “the government’s reasons for the delay, balancing the

prejudice to the defendant with the Government’s justification

for delay.”    Id. (internal quotation marks omitted).

     In    evaluating    the     first     prong,    we   are    mindful    that    the

defendant bears a “heavy burden” because he must demonstrate

“actual prejudice, as opposed to mere speculative prejudice,”

and must “show that any actual prejudice was substantial—that he

was meaningfully impaired in his ability to defend against the

state's charges to such an extent that the disposition of the

criminal    proceeding     was    likely        affected.”       United    States    v.

Shealey,    641   F.3d     627,     633-34        (4th    Cir.    2011)    (internal

quotation marks omitted).

     Gregory does not point to any trial prejudice to support

his due process claim.         Rather, he argues that the preindictment

delay harmed his ability to negotiate concurrent sentences on

his various federal charges.               Gregory argues that, in light of

the importance of plea bargaining in the resolution of federal

criminal proceedings, this court should recognize such prejudice

as   sufficient   to     support       a    due   process    claim    premised      on

preindictment     delay.          We       have    previously      addressed,       and

rejected, such arguments.         See Uribe-Rios, 558 F.3d at 358.




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     To the extent that Uribe-Rios is factually distinguishable

from Gregory’s case, we find those distinctions to be irrelevant

to the prejudice analysis.           Moreover, the cases cited by Gregory

to support his argument that Uribe-Rios is outdated are Sixth

Amendment rather than Fifth Amendment cases, and are therefore

of little help in evaluating claims of preindictment delay.                            We

therefore conclude that Gregory’s due process claim is without

merit.

     Double     jeopardy     claims        are    likewise     reviewed       de   novo.

United States v. Studifin, 240 F.3d 415, 418 (4th Cir. 2001).

The Double     Jeopardy     Clause    prohibits         “successive        prosecutions

for the same offense as well as the imposition of cumulative

punishments for the same offense in a single criminal trial.”

United States v. Shrader, 675 F.3d 300, 313 (4th Cir. 2012)

(internal     quotation     marks    omitted).            Where    a   case   involves

multiple charges, the Double Jeopardy Clause is not offended

where each charge requires proof of a distinct element.                               See

Blockburger v. United States, 284 U.S. 299, 304 (1932); United

States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010).

     Gregory acknowledges that, applying the Blockburger test,

his second prosecution is permissible.                  He therefore argues that

we should look instead to the double jeopardy test applied in

Jordan   v.   Virginia,     653     F.2d    870,    873    (4th    Cir.     1980),    and

Rashad v.     Burt,   108    F.3d     677        (6th   Cir.      1997).      We     have

                                            5
previously repudiated these cases, United States v. Williams,

155 F.3d 418, 420-21 (4th Cir. 1998), and find no reason to

revisit that repudiation.         Our decision in Williams likewise

forecloses Gregory’s remaining double jeopardy arguments.                 Id.

at 420-22.

     Accordingly, we affirm the district court’s judgment.                 We

dispense     with    oral   argument   because     the    facts   and   legal

contentions    are   adequately   presented   in    the   materials     before

this court and argument would not aid the decisional process.



                                                                    AFFIRMED




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