United States v. Michael Kelly , 677 F. App'x 821 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4653
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL RAMOND KELLY, a/k/a Michael Raymond Kelly,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:15-cr-00054-NCT-1)
Submitted: April 25, 2016 Decided: January 26, 2017
Before AGEE, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Terry M.
Meinecke, Assistant United States Attorney, Winston Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Ramond Kelly pled guilty, pursuant to a plea
agreement, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012). The district court
sentenced Kelly to a within-Guidelines sentence of 300 months’
imprisonment. Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal but questioning whether the
district court procedurally erred in declining to grant Kelly a
three-level downward adjustment for acceptance of responsibility
and whether Kelly’s sentence is substantively reasonable. Kelly
was advised of his right to file a supplemental brief, but he
did not do so. We ordered supplemental briefing on whether
Kelly’s North Carolina convictions for assault with a deadly
weapon inflicting serious injury, assault with a deadly weapon
with intent to kill, and voluntary manslaughter were properly
classified as violent felonies under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e) (2012). We affirm.
We review a sentence for reasonableness under a deferential
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Berry, 814 F.3d 192, 194-95 (4th
Cir. 2016). This review requires consideration of both the
procedural and substantive reasonableness of the sentence.
Gall, 552 U.S. at 51. In determining whether a sentence is
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procedurally reasonable, we consider, among other factors,
whether the district court properly calculated the defendant’s
advisory Sentencing Guidelines range. Id. Only after
determining that a sentence is procedurally reasonable will we
consider its substantive reasonableness, “tak[ing] into account
the totality of the circumstances.” Id. “Any sentence that is
within or below a properly calculated Guidelines range is
presumptively [substantively] reasonable. Such a presumption
can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.) (citation omitted), cert. denied, 135 S. Ct. 421 (2014).
We turn first to the propriety of Kelly’s armed career
criminal designation. The parties agree that Kelly’s prior
North Carolina convictions for assault with a deadly weapon with
intent to kill qualify as violent felonies under the ACCA’s
force clause. See 18 U.S.C. § 924(e)(2)(B)(i). They also agree
that, because Kelly “has three previous convictions” for this
offense, “committed on occasions different from one another,” 18
U.S.C. § 924(e)(1), he qualifies as an armed career criminal.
We deem arguments not raised by the parties waived and limit our
review to the arguments raised in the parties’ briefs. Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009). Accordingly, we express no opinion on the designation of
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Kelly’s other prior convictions as violent felonies and will not
disturb the district court’s decision to sentence Kelly as an
armed career criminal.
Next, we review the district court’s “acceptance-of-
responsibility determination for clear error.” United States v.
Burns, 781 F.3d 688, 692 (4th Cir.), cert. denied, 135 S. Ct.
2872 (2015). Under the Guidelines, a defendant is eligible for
a two-level reduction if he “clearly demonstrates acceptance of
responsibility for his offense.” U.S. Sentencing Guidelines
Manual § 3E1.1(a) (2014). And, if his offense level is greater
than 16, he is eligible for an additional 1-level reduction upon
the Government’s motion. USSG § 3E1.1(b). When determining
whether a defendant is deserving of the acceptance of
responsibility reduction, a court considers, among other
factors, whether the defendant voluntarily terminated or
withdrew from criminal conduct or associations. USSG § 3E1.1
cmt. n.1(B). Moreover, absent extraordinary circumstances, a
defendant is ineligible for the reduction when he receives an
enhancement for obstructing justice. USSG §§ 3C1.1, 3E1.1 cmt.
n.4; see United States v. Knight, 606 F.3d 171, 175 (4th Cir.
2010).
Here, Kelly did not terminate or withdraw from criminal
conduct or associations after his arrest. Instead, he and his
fellow inmates brutally attacked the same person who had been
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the victim of the shooting that resulted in Kelly’s arrest for
the instant offense. This assault on a material witness
resulted in an offense-level enhancement for obstruction of
justice. Although Kelly insisted that he and the others
attacked the victim in self-defense, the video footage and an
email he sent the day after showed that the attack was revenge-
motivated and that Kelly was not remorseful for his conduct.
Because the obstruction of justice enhancement was warranted and
Kelly did not terminate or withdraw from criminal conduct or
associations, we conclude that the court did not clearly err in
determining that Kelly did not deserve a downward adjustment for
acceptance of responsibility.
We further conclude that Kelly has not rebutted the
presumption that his within-Guidelines sentence is substantively
reasonable. The court reasonably rejected Kelly’s assertion
that he is a changed man in light of his long history of using
firearms to terrorize and injure people and his recent
orchestration of the revenge-motivated attack on the victim.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Kelly, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Kelly requests that a petition be filed, but
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counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Kelly. 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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