UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4750
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEVELLE GRANT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:14-cr-00412-DCN-1)
Argued: October 26, 2016 Decided: December 16, 2016
Before THACKER and HARRIS, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Harris wrote the
opinion, in which Judge Thacker and Judge Lee joined.
ARGUED: Howard Walton Anderson III, LAW OFFICE OF HOWARD W.
ANDERSON III, LLC, Pendleton, South Carolina, for
Appellant. Michael Rhett DeHart, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee. ON
BRIEF: William Nettles, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:
Levelle Grant pleaded guilty to two counts of possession of
a firearm in a school zone in violation of 18 U.S.C. § 922(q).
The district court sentenced Grant to ten years’ imprisonment,
the statutory maximum. The court also imposed a three-year term
of supervised release, along with a $100 special assessment on
each count.
Grant does not challenge his convictions under § 922(q),
but he does appeal his sentence. According to Grant, his three-
year supervised-release term and the $100 monetary assessments
are contrary to the plain language of § 922(q)ʹs penalty
provision and thus unlawful. Grant also contends that his ten-
year prison sentence is procedurally and substantively
unreasonable. Finding no reversible error, we affirm.
I.
During a period of less than one year in 2013 and 2014,
Grant, who previously had been convicted of felony offenses, was
apprehended three times while in possession of a firearm.
First, in May 2013, law enforcement in Colleton County, South
Carolina, attempted to initiate a traffic stop of Grant’s
vehicle. Grant accelerated to over 100 mph, forced another car
to the side of the road, and eventually crashed. The police
searched the vehicle and found a .45 caliber handgun, marijuana,
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a set of scales, and cash. Grant was arrested and charged with
state crimes including possession of a firearm by a felon.
Two subsequent incidents involved firearm possession near a
school. In September 2014, investigators interviewed Grant’s
girlfriend, who admitted that she recently had bought a Jimenez
9mm pistol for Grant. She then agreed to place a recorded call
to Grant and asked him to deliver the pistol to her. At a Wal-
Mart that was within 1,000 feet of a middle school, Grant gave
the gun to his girlfriend, who turned it over to law
enforcement.
The final incident occurred in February 2014, when the
South Carolina Highway Patrol attempted to stop Grant’s vehicle
on an interstate highway. Grant accelerated to speeds of 80 to
90 mph before eventually stopping on a side street, within 1,000
feet of an adult education center. During a search of his
vehicle, police found a loaded semi-automatic Hi-Point 9mm
handgun. Grant again was arrested and charged with state
crimes.
Grant was indicted in the District of South Carolina with
three counts of possession of a firearm by a convicted felon,
see 18 U.S.C. § 922(g)(1), and as an armed career criminal, see
18 U.S.C. § 924(e). Violations of § 922(g) ordinarily carry a
maximum sentence of ten years’ imprisonment and no mandatory
minimum. 18 U.S.C. § 924(a)(2). But when a defendant has at
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least three prior convictions for a “violent felony,” the Armed
Career Criminal Act (“ACCA”) calls for a mandatory minimum
sentence of fifteen years. 18 U.S.C. § 924(e). The parties
agreed that the ACCA fifteen-year minimum applied to Grant, by
virtue of three prior South Carolina convictions of second-
degree burglary.
Because those burglary convictions occurred in the 1990s
when Grant was a juvenile, however, the government believed that
a fifteen-year sentence was unwarranted. Accordingly, it
allowed Grant to plead guilty instead to two counts of
possession of a firearm in a school zone, § 922(q), punishable
by a maximum sentence of five years on each count, § 924(a)(4).
The government informed Grant that it intended to seek that
statutory maximum penalty, for a total of ten years’
imprisonment. With Grant’s consent to the agreement, the
government filed a superseding indictment, and Grant pleaded
guilty to two violations of § 922(q).
Grant’s presentence report (“PSR”) calculated an advisory
Guidelines range of 18 to 24 months for his convictions under §
922(q). But consistent with its representations during plea
negotiations, the government filed a motion to deviate from that
range in favor of the ten-year statutory maximum. Specifically,
the government sought a departure under U.S.S.G. § 5K2.21, which
provides that a court may depart upward from the Guidelines
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range based on conduct underlying charges dismissed in a plea
agreement. It also sought an upward variance, or deviation
above the Guidelines range based on an assessment of the
sentencing factors set out in 18 U.S.C. § 3553(a). The variance
was warranted, the government argued, under § 3553(a) factors
such as the need to protect the public and promote respect for
law, in light of Grant’s pattern of dangerous conduct. Grant’s
counsel, on the other hand, asked the court to consider a
sentence within the Guidelines range, while acknowledging that
even the upper end of that 18- to 24-month range might be “too
light.” J.A. 69.
At the sentencing hearing, the district court started out
by putting the proposed ten-year sentence in context: “I think
everybody agrees that but for [the government’s] . . .
generosity . . . Mr. Grant would certainly be going to jail for
at least 15 years, if not more, because there’s a mandatory
minimum of 15.” J.A. 76. The court then analyzed the statutory
sentencing factors of § 3553(a), including the nature and
circumstances of Grant’s § 922(q) offenses; Grant’s history and
characteristics; and the need, through sentencing, to reflect
the seriousness of Grant’s offense, promote respect for law, and
protect the public. See 18 U.S.C. § 3553(a). In applying those
factors, the court emphasized that Grant repeatedly, over the
course of less than a year, engaged in illegal possession of a
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firearm; that he involved his girlfriend in a felony; and that
he fled from the police in a manner that endangered others.
Invoking both U.S.S.G. § 5K2.21 and a variance pursuant to the §
3553(a) factors, the district court sentenced Grant to the
maximum statutory term of 60 months for each of his two § 922(q)
violations, served consecutively, for a total of ten years’
imprisonment.
The district court also imposed a three-year term of
supervised release under 18 U.S.C. § 3583, and special
assessments of $100 for each count under 18 U.S.C. § 3013. Both
of those penalties rested on the premise that Grant’s § 922(q)
convictions were for felony offenses. See 18 U.S.C. §
3583(b)(2)–(3)(maximum supervised release term of three years
for Class C and D felonies, one year for misdemeanors); id. at §
3013(a)(1)–(2) (maximum assessment of $100 for felonies, $25 for
classified misdemeanors). Grant’s PSR listed a maximum three-
year term for supervised release and a $100 special assessment,
and those penalties were discussed at Grant’s plea and
sentencing hearings. At no point did Grant object to § 922(q)’s
treatment as a felony for sentencing purposes.
This timely appeal followed.
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II.
Grant’s first contention on appeal is that the district
court improperly classified his § 922(q) convictions as felonies
rather than misdemeanors for the purpose of determining his term
of supervised release and special assessment. Because Grant
failed to raise this argument before the district court, we
review for plain error only. United States v. Aplicano-Oyuela,
792 F.3d 416, 422 (4th Cir. 2015). An error is plain if it is
contrary to the settled law of the Supreme Court or this
circuit. United States v. Carthorne, 726 F.3d 503, 516 (4th
Cir. 2013). Even then, it may be corrected only if it affects
substantial rights and “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)
(internal quotation marks and citation omitted).
Grant’s argument rests on the interplay of three statutory
provisions. As noted above, under 18 U.S.C. § 3583, the
authorized term of supervised release for a Class D felony is
capped at three years, while the maximum term for a misdemeanor
is one year. And similarly, under 18 U.S.C. § 3013, the
special assessment for a felony is $100, while the assessment
for a misdemeanor ranges from $25 for a Class A misdemeanor to
nothing for a misdemeanor without a letter grade. In imposing a
term of three years’ supervised release and two $100
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assessments, in other words, the district court treated Grant’s
§ 922(q) convictions as Class D felonies.
How to classify offenses for sentencing purposes is
governed by a separate statute, 18 U.S.C. § 3559. Under that
provision, any “offense that is not specifically classified by a
letter grade in the section defining it” is classified by “the
maximum term of imprisonment authorized,” with an offense
punishable by “less than ten years but five or more years”
treated as a Class D felony and any offense punishable by one
year or less as a non-felony. See 18 U.S.C. § 3559(a)(4),(6)–
(9). So under § 3559, Grant’s convictions under § 922(q), each
punishable by a maximum of five years’ imprisonment, normally
would be classified as Class D felonies.
But Grant points to a final statute, 18 U.S.C. § 924(a)(4),
which establishes the penalty for a § 922(q) violation. That
provision authorizes a five-year maximum sentence and then
states: “Except for the authorization of a term of imprisonment
of not more than 5 years made in this paragraph, for the purpose
of any other law a violation of § 922(q) shall be deemed to be a
misdemeanor.” Id. at § 924(a)(4) (emphasis added). That
language, Grant argues, is perfectly plain, directing that “for
the purpose” of § 3583 (supervised release) and § 3013 (special
assessments) – undoubtedly laws “other” than § 924(a)(4) – his §
922(q) convictions are to be treated as misdemeanors, subject to
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no more than a one-year term of supervised release and to no
special assessments at all.
The First Circuit recently rejected precisely this
argument, on plain error review, in United States v. Alvira-
Sanchez, 804 F.3d 488, 494-95 (1st Cir. 2015), cert. denied, 136
S. Ct. 2030 (2016). As in this case, the district court in
Alvira-Sanchez treated a § 922(q) offense as a felony for
purposes of imposing a three-year term of supervised release
under § 3583 and a $100 assessment under § 3013. The First
Circuit acknowledged that an interpretation of § 922(q)’s
penalty provision allowing this result “may not be the most
persuasive reading.” Id. at 495. Nevertheless, it concluded
that any error committed was not plain, in light of imprecision
in the statutory framework and the fact that other district
courts also have treated § 922(q) offenses as felonies for
sentencing purposes. Id.
We agree. As the government argues, though it “is not
immediately obvious” on the face of § 922(q), Appellee Br. at 8,
it is perhaps possible to read that provision in conjunction
with § 3559’s classification scheme in a way that would make §
922(q) a felony offense. Section 3559, the government notes,
governs any “offense that is not specially classified by a
letter grade in the section defining it.” 18 U.S.C. § 3559(a).
Because § 922(q)’s penalty description refers only to “a
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misdemeanor” and does not use a letter grade, the government
reasons, § 3559(a)’s default classification system applies,
classifying a § 922(q) offense by reference to its maximum term
of imprisonment.
Like the First Circuit, we cannot conclude that this
interpretation is so plainly erroneous as to warrant reversal
absent a properly preserved objection. No case from the Fourth
Circuit – or any other federal court of appeals – has adopted
Grant’s reading of § 922(q)’s penalty provision. Nor has any
district court within the Fourth Circuit. 1 Instead, a number of
courts have taken the same approach as the district court here,
treating § 922(q) offenses as felonies for sentencing purposes.
See, e.g., United States v. Nieves-Castano, 480 F.3d 597, 599
(1st Cir. 2007) (§ 922(q) offender sentenced to three-year term
of supervised release); United States v. Handy, 8 F.3d 20, 1993
WL 455551 (5th Cir. 1993) (unpublished table decision) (same);
Hough v. United States, No. 3:13–cv–143–FDW, 2015 WL 127881, at
*1 (W.D.N.C. Jan. 8, 2015) (unpublished) (same). That the
government’s understanding of § 922(q) appears to have been
1Grant can cite only one district court decision treating a
§ 922(q) violation as a misdemeanor for purposes of supervised
release – and that decision, we note, also appears to have
treated the same § 922(q) violation as a felony for purposes of
the special assessment. See United States v. Rivera-Concepcion,
No. CRIM. 07-169 CCC, 2007 WL 1852608, at *2 (D.P.R. June 25,
2007) (limiting supervised release in connection with a § 922(q)
violation to one year, but imposing a $100 special assessment).
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adopted by a handful of courts – without any analysis, we note –
does not mean that it is correct. But as the First Circuit
explained in Alvira-Sanchez, “that other courts have fallen prey
to the same error, if error indeed there was here, [does]
demonstrate that any misconstruction on the part of the district
court was not obviously erroneous.” 804 F.3d at 495. On plain
error review, that is enough to dispose of Grant’s claim.
III.
We turn now to Grant’s challenge to his ten-year prison
sentence as procedurally and substantively unreasonable. We
review the reasonableness of a sentence under the deferential
abuse of discretion standard. United States v. Lynn, 592 F.3d
572, 579 (4th Cir. 2010). This court first assesses whether the
district court committed any procedural errors, which may
include incorrectly calculating the Guidelines range, failing to
adequately consider the § 3553(a) factors, or providing an
insufficient justification for the sentence. United States v.
Lymas, 781 F.3d 106, 111 (4th Cir. 2015) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)). If the sentence is
procedurally reasonable, we then review its substantive
reasonableness in light of the totality of the circumstances.
Gall, 552 U.S. at 51.
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As noted above, the district court, invoking both a §
5K2.21 departure and a variance under § 3553(a), sentenced Grant
to the ten-year statutory maximum for two § 922(q) offenses,
well above the advisory Guidelines range of 18 to 24 months.
With respect to procedural reasonableness, Grant’s primary
argument is that the district court erred by failing to address
separately the § 5K2.21 departure and the variance when it
explained its sentencing decision. According to Grant, the
district court was required to first rule on the government’s
request for a departure under § 5K2.21, and only then consider
any potential variance under § 3553(a)’s sentencing factors.
Because the court did not adhere to this sequence, Grant argues,
it failed to adequately explain what portion of its sentence was
based on a departure as opposed to a variance.
We rejected a nearly identical claim in United States v.
Diosdado-Star, 630 F.3d 359, 364-65 (4th Cir. 2011). In light
of Rita v. United States, 551 U.S. 338 (2007), and Gall v.
United States, 552 U.S. 38 (2007), we reasoned, “the practical
effects of applying either a departure or a variance are the
same,” and the method by which a district court deviates from an
initial Guidelines range affects neither the justification that
court must provide nor the appellate review in which we engage.
630 F.3d at 365. Whether a district court has relied on a
departure or a variance is “irrelevant,” we concluded, so long
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as either is justified, and there is no requirement that a
district court address a potential departure before considering
a variance. Id. at 366. Whether it applies a departure, a
variance, or both, what matters is only that the district court
give “serious consideration to the extent” of any deviation and
“adequately explain the chosen sentence.” Id. (quoting Gall,
552 U.S. at 46, 50); United States v. Evans, 526 F.3d 155, 164
(4th Cir. 2008) (review of sentence does not depend on whether
departure or variance provides the basis for a deviation).
Under that standard, we can find no fault with the
sentencing procedures of the district court. At the sentencing
hearing, the district court provided a lengthy and careful
explanation for its upward deviation, analyzing Grant’s history
and the details of his offenses under the § 3553(a) factors.
The district court’s obligation was to “provide a rationale
tailored to the particular case at hand and adequate to permit
meaningful appellate review,” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks and citations
omitted), and it has amply satisfied that obligation here. 2
2
Grant also objects to certain isolated comments made by
the government and the district court during sentencing. Taken
in context, those comments do nothing to detract from the
adequacy of the district court’s explanation and are not
otherwise problematic.
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Finally, we consider the substantive reasonableness of
Grant’s sentence. We are mindful that Grant’s ten-year sentence
represents a substantial upward deviation from the advisory
Guidelines range of 18 to 24 months, and that the justification
for a sentence must “support the degree of the variance,” with a
“major departure . . . supported by a more significant
justification than a minor one.” Evans, 526 F.3d at 161
(quoting Gall, 552 U.S. at 50). At the same time, a significant
deviation from the Guidelines range does not render a sentence
presumptively unreasonable, and we show “due deference to the
district court’s decision that the § 3553(a) factors, on the
whole, justify the extent of the variance.” Id. at 161-62
(quoting Gall, 552 U.S. at 51).
Taking into account the “totality of the circumstances,” as
we must, id. at 161, we find no abuse of discretion in the
district court’s sentencing determination. As the district
court emphasized at the start of Grant’s sentencing hearing, the
ten-year sentence it ultimately imposed was substantially
shorter than the fifteen-year mandatory minimum Grant would have
faced under his original indictment, but for the plea agreement
offered by the government. Section 5K2.21 of the Guidelines, on
which the district court relied, addresses just this situation,
and allowed for an upward departure based on the § 922(g) felon-
in-possession charges dismissed under the plea agreement.
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Moreover, as the district court emphasized, Grant had a lengthy
criminal history, engaged in a repeated pattern of unlawful
possession of a firearm over a short period of time, had in his
car items indicative of drug distribution, involved his
girlfriend in his illegal activities, and twice initiated high-
speed and dangerous car chases that put others at serious risk.
Under the “deferential abuse-of-discretion standard,” Evans, 526
F.3d at 166 (quoting Gall, 522 U.S. at 41), we have no ground to
disturb the district court’s judgment that a ten-year prison
sentence was warranted in this case.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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