United States v. Dilade McCoy

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4745

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DILADE MCCOY,

Defendant - Appellant.

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: September 17, 2015 Decided: October 15, 2015

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Gregory joined.

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.
DIANA GRIBBON MOTZ, Circuit Judge:

Dilade McCoy challenges as substantively unreasonable his

188-month sentence for conspiracy and possession with intent to

distribute cocaine. We affirm.

In 2014, a federal grand jury indicted McCoy for conspiracy

to distribute and possess with intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. § 846 (2012);

possession with intent to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(B)(ii)

(2012); and possession of ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2012). At trial, his co-

defendant testified to buying cocaine from McCoy on three

occasions: an early summer 2013 sale of one kilogram, a late

summer 2013 sale of three kilograms that were returned for poor

quality, and a November 2013 sale of three kilograms. The jury

found McCoy guilty of the drug-related charges for an amount of

cocaine greater than 500 grams but less than 5 kilograms.

In the Presentence Investigation Report (PSR), the

probation officer counted all three sales and attributed seven

kilograms of cocaine to McCoy, above the range the jury found.

Pursuant to the U.S. Sentencing Guidelines Manual § 2D1.1(c)(4)

(U.S. Sentencing Comm’n 2013), the PSR pegged McCoy’s base

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offense level at 32. The PSR calculated McCoy’s criminal

history category as II, reflecting three points for a 2005

conviction for criminal possession of cocaine with intent to

distribute. The resulting advisory Guidelines range was 135 to

168 months’ imprisonment.

McCoy objected to the amount of cocaine attributed to him,

arguing that he should be held accountable only for the amount

of cocaine found by the jury, which would reduce his base

offense level to 30 and Guidelines range to 108 to 120 months.

He sought a term of imprisonment no greater than the statutory

mandatory minimum sentence of 120 months.

The Government moved for an upward departure, arguing that

McCoy’s criminal history category understated the seriousness of

his criminal past. While a juvenile, McCoy committed three

felonies, for which he was tried as an adult. He committed two

robberies in 1986 at age 15, was convicted of both and

imprisoned. In 1989, at age 17 and one year after his release

from prison, he committed another violent crime, pleading guilty

to assault with intent to cause serious injury with a weapon.

For that offense, he served eight years in prison. He was

discharged from parole in 2000 and arrested less than five years

later, resulting in the 2005 conviction for criminal possession

of cocaine. Because McCoy committed the robberies and assault

more than fifteen years before the present offenses, the PSR did

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not count them in determining his criminal history category

pursuant to Guidelines § 4A1.2(e)(3). To reflect the juvenile

convictions, the Government requested an increase to criminal

history category IV and a sentence of 192 months, which is

within the applicable 168-to-210 month Guidelines range. McCoy

objected to consideration of his juvenile convictions because of

their remoteness and his youth at the time of the offenses.

The district court rejected McCoy’s objection to the amount

of cocaine attributed to him. In response to the Government’s

motion for upward departure, the court observed that McCoy’s

criminal history was “quite serious” and that “the facts here

call for the application of [§] 4A1.3,” which governs upward

departures based on the inadequacy of a defendant’s criminal

history category. The court counted all three convictions,

resulting in an additional eight points, placing McCoy in

criminal history category V with a Guidelines range of 188 to

235 months’ imprisonment. The court sentenced McCoy to 188

months’ imprisonment, explaining that the departure was

“necessary to protect the public from the defendant, to promote

respect for the law, to deter the defendant, and to deter others

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similarly situated.” McCoy noted a timely appeal of this

sentence. 1

We review a sentence for reasonableness “under a

deferential abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 41 (2007). The same standard applies

whether the sentence is “inside, just outside, or significantly

outside the Guidelines range.” Id. However, a “major

departure” from the Guidelines range “should be supported by a

more significant justification than a minor one.” Id. at 50.

In reviewing a departure from the advisory Guidelines range, we

“defer to the trial court and can reverse a sentence only if it

is unreasonable, even if the sentence would not have been [our]

choice.” United States v. Evans, 526 F.3d 155, 160 (4th Cir.

2008) (emphasis omitted).

II.

McCoy makes no claim that his sentence is procedurally

unreasonable, but he poses several challenges to the substantive

reasonableness of his sentence. Each argument fails.

1 McCoy filed a pro se supplemental brief in which he also
challenges the sufficiency of the evidence. After thorough
review of these arguments, we find that they lack merit.

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A.

First, McCoy asserts that his sentence is substantively

unreasonable because the district court “improperly considered”

his stale juvenile convictions. Appellant’s Br. 15. He argues

that these crimes, which he committed between the time he was 15

to 17 years old, and which occurred approximately 25 years

before he committed the instant crimes, do not justify the

district court’s upward departure.

Section 4A1.3(a)(1) of the Guidelines authorizes an upward

departure when “reliable information indicates that the

defendant’s criminal history category substantially under-

represents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes.”

U.S.S.G. § 4A1.3(a)(1); see United States v. Whorley, 550 F.3d

326, 341 (4th Cir. 2008) (noting that an under-representative

criminal history category is an “encouraged” basis for upward

departure). A court may base a Guidelines § 4A1.3 upward

departure on a defendant’s prior convictions, even if those

convictions are too old to be counted in the calculation of the

Guidelines range under Guidelines § 4A1.2(e). U.S.S.G.

§§ 4A1.2(e) cmt. n. 8, 4A1.3(a)(2)(A).

The district court found that McCoy’s criminal history

category under-represented his criminal history enough to

warrant an upward departure. The court recognized McCoy’s youth

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at the time he committed the robberies and the assault with

intent to cause serious injury with a weapon. The court also

recognized the remoteness of these crimes from his present

offenses. But given the seriousness of the juvenile crimes and

the fact that McCoy committed another crime -- criminal

possession of cocaine -- within five years of being released

from prison on the third juvenile charge (the assault), the

court found that counting the juvenile felonies in McCoy’s

criminal history better represented that “serious” history and

his likelihood of recidivism.

Relying heavily on our recent decision in United States v.

Howard, 773 F.3d 519 (4th Cir. 2014), McCoy maintains that the

district court abused its discretion in so reasoning. In

Howard, we held that the imposition of a life sentence, an

enormous departure from the 121-month top of the Guidelines

range, on the basis of juvenile, non-violent, stale convictions,

constituted an abuse of discretion. Howard, 773 F.3d at 528,

535-36. Howard is clearly distinguishable from the case at

hand. For here the court imposed a much more modest upward

departure (from 168 months to 188 months) on the basis of

violent juvenile crimes. We have found reasonable far greater

upward departures based on similar facts. See, e.g., United

States v. Myers, 589 F.3d 117 (4th Cir. 2009) (finding

reasonable an upward departure from 121 months to 360 months

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based on three stale convictions); United States v. Lawrence,

349 F.3d 724, 727 (4th Cir. 2003) (finding reasonable an upward

departure from 96 months to a total of 262 months based in part

on the defendant’s “extensive juvenile record”). The district

court here departed upward a number of months that “pale[s] in

comparison to” the upward departure in Howard, 773 F.3d at 530,

and did not abuse its discretion in considering McCoy’s violent

juvenile crimes in doing so.

Second, McCoy argues that his sentence is substantively

unreasonable because the district court increased his criminal

history category to V, even though the Government only requested

an increase to category IV. He again seeks to analogize his

case to Howard, where we recognized that, although “no district

court is ever mandated to impose the sentence recommended by the

prosecution,” it was notable that the district court’s sentence

of life imprisonment was far longer than the 360-month sentence

advocated by the Government. 773 F.3d at 533-35. We pointed

out that the Government’s recommendation “can serve as an

important pillar” in achieving “the avoidance of unwarranted

sentencing disparities,” one of the principle goals of the

Sentencing Reform Act of 1984 and the Guidelines. Id. at 535.

We stand by those observations, but they do not assist

McCoy for, although the district court increased his criminal

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history category above the Government’s request, the sentence of

188 months was lower than the 192 months requested by the

Government. Furthermore, had the district court increased

McCoy’s criminal history category to IV, as requested by the

Government, a sentence of 188 months would still have fallen

within the resulting Guidelines range of 168 to 210 months.

Thus, this increase in the criminal history category does not

raise the issue of “unwarranted sentencing disparities”

identified in Howard.

Third, McCoy maintains that his sentence overstates the

seriousness of his offense. He argues that the three-kilogram

order placed in November 2013 merely replaced the three-kilogram

order returned in the summer of 2013. McCoy concedes that all

seven kilograms “can properly be considered” in the “technical

determination” of his base offense level. Appellant’s Br. 18.

However, he contends that the district court should have used

its discretion to depart downward to a base offense level of 30,

based only on four kilograms of cocaine, to reflect the

“reality” of how much cocaine he actually trafficked.

Appellant’s Br. 18-19. The record does not support McCoy’s

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 kilograms even if it did

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constitute a replacement. See United States v. Young, 609 F.3d

348, 357 (4th Cir. 2010).

Lastly, McCoy argues that his sentence is substantively

unreasonable because Amendment 782 to the Guidelines went into

effect shortly after he was sentenced. Amendment 782 is a

retroactive amendment that lowered the base offense levels

applicable to drug-related crimes. Post-sentencing Guidelines

amendments do not make a pre-amendment sentence unreasonable.

See United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).

The district court correctly applied the Guidelines prevailing

at the time of sentencing. The proper avenue for a request for

application of Amendment 782 is a motion under 18 U.S.C.

§ 3582(c)(2), which would allow the district court to assess in

the first instance whether and to what extent the amendment may

affect McCoy’s sentence. Id. 2

III.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

2 Our holding as to the substantive reasonableness of
McCoy’s sentence is rendered without prejudice to McCoy’s right
to pursue such relief in the district court.