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United States v. Dilade McCoy, 4th Cir. (2015)
United States v. Dilade McCoy, 4th Cir. (2015)
United States v. Dilade McCoy, 4th Cir. (2015)
No. 14-4745
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:
Decided:
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.
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)
testified
occasions:
to
buying
cocaine
from
McCoy
on
three
summer 2013 sale of three kilograms that were returned for poor
quality, and a November 2013 sale of three kilograms.
The jury
the
Presentence
Investigation
Report
(PSR),
the
Sentencing
Commn
2013),
2
the
PSR
pegged
McCoys
base
offense
level
at
history
category
32.
as
The
II,
PSR
calculated
reflecting
three
McCoys
points
criminal
for
2005
cocaine
found
by
the
jury,
which
would
reduce
his
base
criminal
past.
While
juvenile,
McCoy
in
imprisoned.
1986
at
age
15,
was
committed
three
He committed two
convicted
of
both
and
He was
discharged from parole in 2000 and arrested less than five years
later, resulting in the 2005 conviction for criminal possession
of cocaine.
more than fifteen years before the present offenses, the PSR did
3
not
count
them
in
determining
his
criminal
history
category
category
IV
and
sentence
of
192
months,
which
is
McCoy
category.
resulting
in
an
The
court
additional
counted
eight
all
three
points,
convictions,
placing
McCoy
in
months
months
imprisonment.
imprisonment,
The
court
explaining
sentenced
that
the
McCoy
to
departure
188
was
similarly
situated.
McCoy
noted
timely
appeal
of
this
sentence. 1
We
review
sentence
for
deferential
abuse-of-discretion
States,
U.S.
552
38,
41
reasonableness
standard.
(2007).
The
under
Gall
same
v.
standard
United
applies
the
Guidelines
range.
Id.
However,
major
Id. at 50.
II.
McCoy
makes
no
claim
that
his
sentence
is
procedurally
A.
First,
McCoy
asserts
that
his
sentence
is
substantively
He argues
17
before
years
he
old,
and
committed
which
the
occurred
instant
approximately
crimes,
do
not
25
years
justify
the
when
defendants
reliable
criminal
information
history
category
indicates
that
substantially
the
under-
court
departure
defendants
on
may
base
prior
Guidelines
convictions,
4A1.3
even
upward
if
those
range
under
Guidelines
4A1.2(e).
U.S.S.G.
district
court
found
under-represented
that
his
McCoys
criminal
criminal
history
history
enough
to
the
offenses.
the
that
fact
remoteness
McCoy
of
these
committed
crimes
another
from
his
crime
--
present
criminal
prison
court
found
on
the
that
third
juvenile
counting
the
charge
juvenile
(the
assault),
felonies
in
the
McCoys
court
we
enormous
held
abused
that
departure
its
the
from
discretion
imposition
the
in
so
of
121-month
top
reasoning.
life
of
sentence,
the
In
an
Guidelines
Howard
is
clearly
distinguishable
the
case
at
departure
(from
168
months
to
188
months)
v.
Myers,
589
on
the
basis
of
from
F.3d
117
(4th
Cir.
2009)
(finding
The district
McCoy
argues
that
his
sentence
is
substantively
that
important
sentencing
the
Governments
pillar
in
achieving
disparities,
one
of
the
the
can
avoidance
principle
stand
by
those
observations,
but
they
We pointed
serve
of
as
an
unwarranted
goals
of
the
Id. at 535.
do
not
assist
months
was
Government.
lower
than
Furthermore,
the
had
192
the
months
requested
district
court
by
the
increased
the
resulting
Guidelines
range
of
168
to
210
months.
the
issue
of
unwarranted
sentencing
disparities
identified in Howard.
C.
Third,
McCoy
maintains
that
his
sentence
overstates
the
only
reality
Appellants
on
four
of
how
Br.
kilograms
much
18-19.
of
cocaine
The
record
cocaine,
he
does
to
reflect
actually
not
the
trafficked.
support
McCoys
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.
McCoy
argues
that
his
sentence
is
substantively
shortly
retroactive
after
he
amendment
was
that
sentenced.
lowered
the
Amendment
base
782
offense
is
levels
Post-sentencing Guidelines
of
Amendment
is
motion
under
18
U.S.C.
Id. 2
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.