United States v. Gross

Appellate Case: 20-6175 Document: 010110726401 Date Filed: 08/18/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 18, 2022

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-6175

MARTAVIOUS ARNEZ GROSS,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:20-CR-00002-HE-2)
_________________________________

David Autry, Oklahoma City, Oklahoma, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United
States Attorney, and Wilson D. McGarry, Assistant United States Attorney, with him on
the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
_________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges.
_________________________________

CARSON, Circuit Judge.
_________________________________

Defendant Martavious Gross escalated what could have been an everyday

episode on the highway into a drive-by shooting. The sentencing court varied

upward from the Guidelines range and sentenced Defendant to the statutory

maximum. He appeals, challenging the sentence’s procedural and substantive
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reasonableness. But the waiver in his plea agreement prohibits procedural appeals.

Defendant tries to take a detour around his appeal waiver by suggesting we should

evaluate how the court calculated the Guidelines range as part of our substantive

analysis. But a defendant cannot transform procedural arguments into a substantive

challenge to avoid an appeal waiver’s plain language. For this reason, exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm Defendant’s

sentence in part and dismiss his appeal in part.

I.

Defendant sat in the passenger seat of a car driving on an Oklahoma highway

when A.A., the eventual victim, cut the car off, allegedly almost hitting it. The car

sped up to pull beside A.A.’s car so that Defendant could yell at and flip off A.A.

But typical road-rage signaling did not satisfy Defendant, so the car caught up to

A.A. again, and this time Defendant fired a gun at A.A.’s vehicle. The car took off

afterward, and Defendant gave the gun to his brother to hide in the trunk. A.A. then

followed the car to collect its description and license-plate number, along with a

description of Defendant, to report to the police.

State troopers started searching for the reported vehicle. Once they found it,

the car led the troopers on a high-speed chase before stopping. The troopers detained

all three passengers—the driver, Defendant, and Defendant’s brother. They found

two stolen firearms in the trunk: an AR-15 containing a forty-five-round magazine

fully loaded with .223 caliber ammunition and a .40 caliber handgun containing a

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fifteen-round magazine fully loaded with .40 caliber ammunition. Defendant

admitted to owning the handgun, shooting it at A.A.’s vehicle, and telling his brother

to hide the handgun in the trunk after the shooting.

Defendant pled guilty to possessing a firearm by a prohibited person.1 In his

plea agreement, Defendant waived the right to appeal his “sentence as imposed by the

Court, including . . . the manner in which the sentence is determined.” But

Defendant could appeal the “substantive reasonableness” of his sentence if it

exceeded the advisory Guidelines range.

This was not Defendant’s first run-in with the law. His violent behavior

started at age fourteen, when he pled guilty to, among other things, assault/battery

(originally charged as assault/battery with a dangerous weapon). At age seventeen,

Defendant beat up two women at the Office of Juvenile affairs because one of them

served him with a minor violation. Barely a year after that assault, another woman

reported that Defendant choked and beat her. Defendant pawned two stolen firearms

at age twenty. That same year, before pawning the stolen firearms, he stole a

handgun from his ex-girlfriend, and when she tried to get it back, he bit her on the

cheek. At age twenty-one, Defendant “punched [the same ex-girlfriend] down” and a

month later, on his twenty-second birthday, locked her in her bedroom after taking

her cellphone. Less than a week after that birthday, police arrested Defendant for

fighting with and choking the same ex-girlfriend. She finally procured a protective

1
An earlier protective order against Defendant made him a “prohibited
person.” See 18 U.S.C. § 922(g)(8); infra at 4.
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order against Defendant. But that did not stop Defendant from entering her ex-

husband’s home and punching him in the face only a few weeks following final entry

of the protective order. Defendant committed this last offense mere months before

the road-rage incident. Finally, Defendant allegedly battered another inmate while

awaiting sentencing for the road-rage offense. And that list does not even mention

his drug and vandalism offenses.

The district court considered Defendant’s criminal history when it imposed his

sentence. It varied upward from the Sentencing Guidelines range of fifty-seven to

seventy-one months and sentenced Defendant to the maximum prison term of 120

months. It did so because of the threat Defendant poses to the public and the

seriousness of his conduct in the shooting. In providing its reasons for varying

upward, the district court recognized Defendant’s “significant, long-term, and

continuous history of violent conduct that dates back to his teenage years.”

Defendant appeals, challenging the sentence’s procedural and substantive

reasonableness. The government invoked Defendant’s appeal waiver in response to

his procedural arguments.

II.

We review de novo the enforceability of a defendant’s appeal waiver in a plea

agreement. United States v. Lonjose, 663 F.3d 1292, 1297 (10th Cir. 2011) (citation

omitted). But we review “all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.”

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Gall v. United States, 552 U.S. 38, 41 (2007). Thus, we give “due deference” to the

sentencing court’s variance based on 18 U.S.C. § 3553(a)’s factors. United States v.

Smart, 518 F.3d 800, 808 (10th Cir. 2008) (citations omitted); see also Gall, 552 U.S.

at 51 (noting that the sentencing court “is in a superior position to find facts and

judge their import under § 3553(a) in the individual case”). To prove the court

abused its discretion, the defendant must show “the sentence exceeded the bounds of

permissible choice,” such that the sentence is “arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Garcia, 946 F.3d 1191, 1211 (10th Cir.

2020) (citations and internal quotation marks omitted).

III.

Defendant challenges three aspects of his sentence. First, he argues the

sentencing court improperly increased his base-offense level by applying two

inapplicable enhancements. He argues the stolen firearm enhancement, a two-level

increase, see U.S.S.G. § 2K2.1(b)(4)(A)), does not apply because no evidence proved

he stole the handgun or knew it was stolen. He also disputes the drive-by shooting

enhancement, a four-level increase, see U.S.S.G. § 2K2.1(b)(6)(B)), because it

applies to felonies, but Defendant claims his conduct could qualify as misdemeanor

reckless conduct with a firearm. Second, Defendant insists a jury should have

applied the enhancements only after finding they applied beyond a reasonable doubt,

instead of the court finding the enhancements applied by a preponderance of the

evidence. Finally, Defendant contests the court’s consideration of the § 3553(a)

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factors in varying upward from the Guidelines range to the statutory maximum.

Defendant’s first two arguments attack his sentence’s procedural reasonableness,

while his last argument strikes at its substantive reasonableness.

A.

Defendant’s procedural challenges immediately run into a roadblock—his

appeal waiver. At oral argument, his counsel focused solely on the substantive

reasonableness of the sentence. Although he claimed to “maintain” the procedural

arguments, he admitted that the plea agreement’s terms “appear to bar” them. What

Defendant seems to concede, our caselaw confirms.

We will “enforce a defendant’s appellate waiver so long as: (1) the disputed

issue falls within the scope of the waiver of appellate rights; (2) the defendant

knowingly and voluntarily waived his appellate rights; and (3) enforcing the waiver

would not result in a miscarriage of justice.” Lonjose, 663 F.3d at 1297 (citing

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam)).

Our review of procedural reasonableness focuses on the “manner in which” the

sentencing court calculated the sentence. United States v. Sanchez-Leon, 764 F.3d

1248, 1261 (10th Cir. 2014) (citation omitted). Procedural-reasonableness arguments

include whether the court incorrectly calculated the Guidelines range, failed to

consider the § 3553(a) factors, or relied on clearly erroneous facts. United States v.

Haggerty, 731 F.3d 1094, 1098 (10th Cir. 2013) (citation omitted). Enforcing an

appeal waiver results in a miscarriage of justice when (1) the district court relied on

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an impermissible factor such as race, (2) ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid, (3) the

sentence exceeds the statutory maximum, or (4) the waiver is otherwise unlawful.

Hahn, 359 F.3d at 1327 (citation omitted).

Defendant’s first two arguments fall within the waiver’s scope. As a reminder,

he waived the right to appeal his “sentence as imposed by the Court, including . . .

the manner in which the sentence is determined.” We hold his waiver includes the

challenges to his sentence’s calculation. See Sanchez-Leon, 764 F.3d at 1261; see

also United States v. McCrary, No. 21-6047, 2022 WL 2920054, at *4 (10th Cir. July

26, 2022). Defendant does not contest this conclusion. Nor does Defendant claim

that he waived his rights involuntarily or unknowingly or that enforcing the waiver

would result in a miscarriage of justice; so we will not address those factors, either.

See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (citations omitted)

(only considering Hahn factors that the defendant contests). We enforce the waiver,

then, and dismiss his appeal insofar as Defendant’s arguments bear solely upon the

procedural reasonableness of his sentence.

But Defendant urges us to consider these supposed procedural errors within his

substantive-reasonableness challenge, even if he waived his right to appeal them. So

we turn to that argument now.

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B.

Defendant claims that if the sentencing court set his Guidelines range “higher

than it should have been” based on procedural errors, then that affected the

substantive reasonableness of the sentence. He also argues that the court improperly

weighed the § 3553(a) factors, sentencing him to a substantively unreasonable

sentence, the statutory maximum. We hold that the court did not abuse its discretion

in sentencing Defendant above the Guidelines range because the § 3553(a) factors

sufficiently support the sentence.

Start with Defendant’s argument about how procedural and substantive

reasonableness interact. He relies on United States v. Barnes for such a proposition.

890 F.3d 910 (10th Cir. 2018). In that case, we recognized that “the line between

procedural and substantive reasonableness is blurred.” Id. at 917 (citing United

States v. Reyes-Santiago, 804 F.3d 453, 468 n.19 (1st Cir. 2015)). Defendant plucks

this line, though, out of a broader discussion about how “the content of the district

court’s explanation is relevant to whether the length of the sentence is substantively

reasonable.” Id. Specifically, we found the distinction between the two types of

reasonableness “a significant but not necessarily sharp one, especially as it concerns

a sentencing court’s explanation for the sentence.” Id. at 916 (emphasis added). So

to analyze the substantive reasonableness of the defendants’ sentences, we considered

the district court’s explanation for each to determine whether the court abused its

discretion in weighing the § 3553(a) factors. Id. at 917 (citation omitted); see also

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United States v. Friedman, 554 F.3d 1301, 1308 n.10 (10th Cir. 2009) (citation

omitted) (noting that the “undeniably sparse record [from the district court’s failure

to explain its sentence] . . . certainly bears on the question whether [the defendant]’s

sentence is substantively reasonable”). In other words, “we rely on the district

court’s procedurally-required explanation in order to conduct ‘meaningful appellate

review’ of a sentence’s substantive reasonableness.” United States v. Cookson, 922

F.3d 1079, 1091 (10th Cir. 2019) (quoting Gall, 552 U.S. at 50) (citing United States

v. Lente, 647 F.3d 1021, 1039 (10th Cir. 2011)).

But Defendant does not complain that the district court inadequately explained

how it decided to sentence him to the statutory maximum. Nor could he; the district

court thoroughly explained its reasons for exceeding the Guidelines range.

Arguing that the district court improperly emphasized some factors over others

also blurs the line between procedural and substantive reasonableness. This seems

more like Defendant’s theory. But we have “clarified the difference between

substantive and procedural reasonableness [in those cases]: procedural error is the

‘failure to consider all the relevant factors,’ whereas substantive error is when the

district court ‘imposes a sentence that does not fairly reflect those factors.’”

Sanchez-Leon, 764 F.3d at 1268 n.15 (brackets and ellipses omitted) (quoting United

States v. Lopez-Macias, 661 F.3d 485, 489 n.3 (10th Cir. 2011)).

A defendant may not make an end run around an appeal waiver by suggesting

we should evaluate the way the district court calculated the Guidelines range as part

of our substantive analysis. See McCrary, 2022 WL 2920054, at *5 (citation

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omitted) (rejecting the defendant’s attempt to combine his waived (through an appeal

waiver with language practically identical to the waiver here) procedural argument

with his substantive challenge, which the appeal waiver allowed). So, here,

Defendant cannot ram his procedural arguments into his substantive challenge just to

avoid the appeal waiver’s plain language. We therefore decline to consider

Defendant’s procedural arguments even if they affect the substantive reasonableness

of his sentence.

Defendant faces another uphill battle with substantive reasonableness. We

will “address whether the length of the sentence is reasonable given all the

circumstances of the case in light of the [§ 3553(a)] factors.” United States v.

Durham, 902 F.3d 1180, 1238 (10th Cir. 2018) (citations omitted). In conducting

this analysis, we are mindful that sentencing calls “on a district court’s unique

familiarity with the facts and circumstances of a case,” and thus we will only find an

abuse of discretion when the sentence “exceed[s] the bounds of permissible choice,

given the facts and the applicable law in the case at hand.” United States v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (citations and internal quotation

marks omitted). For that reason, “we uphold even substantial variances when the

district court properly weighs the § 3553(a) factors and offers valid reasons for the

chosen sentence.” Barnes, 890 F.3d at 916; see also Gall, 552 U.S. at 51 (noting that

the sentencing court “is in a superior position to find facts and judge their import

under § 3553(a) in the individual case” (quotation omitted)).

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The § 3553(a) factors the court should consider in determining an appropriate

sentence include: (1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for a sentence to reflect the seriousness

of the crime, deter future criminal conduct, prevent the defendant from committing

more crimes, and provide rehabilitation; (3) the sentences legally available; (4) the

Sentencing Guidelines; (5) the Sentencing Commission’s policy statements; (6) the

need to avoid unwarranted sentence disparities; and (7) the need for restitution. 18

U.S.C. § 3553(a).

Defendant first challenges the sentencing court’s upward variance based on

conduct that the Guidelines already considered—his four-level enhancement for

illegally possessing a firearm while committing a felony. He insists that the court’s

consideration of this conduct after applying the enhancement amounts to double

counting. But “[u]nder current precedent, district courts have broad discretion to

consider particular facts in fashioning a sentence under 18 U.S.C. § 3553(a), even

when those facts are already accounted for in the advisory guidelines range.” Barnes,

890 F.3d at 921 (citation, internal quotation marks, and brackets omitted). So the

court did not abuse its discretion in considering the nature of his conduct when it

decided to vary upward from the Guidelines range.

Defendant also emphasizes that his long list of previous run-ins with the law

includes no “actual” felony convictions. So, he argues, the sentencing court

“overstated the seriousness” of and gave too much weight to his criminal history

when deciding to vary upward from the Guidelines range. Not to mention, he adds,

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probation found no “factors that would warrant a departure from the applicable”

Guidelines range. He cites no authority for this argument. Worse yet, Defendant

ignores our precedent requiring the sentencing court to “carefully consider the facts

contained in the PSR when evaluating the § 3553(a) sentencing factors.” United

States v. Mateo, 471 F.3d 1162, 1167 (10th Cir. 2006) (citation omitted).

The court did exactly that. Recall that Defendant’s criminal history includes

years of assaults and violent behavior toward others, the most recent assault allegedly

occurring while Defendant awaited sentencing. Based on that history, the court

considered § 3553(a) factors 1, 2, 4, and 6, and then sentenced Defendant

accordingly. See Barnes, 890 F.3d at 916 (“But the court need not rely on every

single factor—no algorithm exists that instructs the district judge how to combine the

factors or what weight to put on each one.”). We hold that the court did not abuse its

discretion in weighing Defendant’s criminal history when sentencing him above the

Guidelines range.

Defendant finally complains that the sentencing court did not sufficiently

account for his deprived background. The court did mention Defendant’s unfortunate

upbringing at sentencing. But it also recognized Defendant’s “significant and long-

term history of violent conduct going back to his early teenage years that has been,

more or less, consistent” up to the shooting. In particular, the court noted that

Defendant “packed a lot of violent conduct into th[e] relatively short period” from his

teenage years to now. Although “evidence of a poor upbringing or mental health

problems can play a crucial mitigating role,” that evidence “is most powerful when

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accompanied by signs of recovery.” United States v. Lente, 759 F.3d 1149, 1173

(10th Cir. 2014) (citation and internal quotation marks omitted). Such recovery

Defendant has not shown. Thus, “we cannot say that the district court abused its

discretion in granting limited import to [Defendant]’s mitigating evidence in light of

the entire record.” Id. at 1174.

In the end, Defendant disagrees with the court’s decision to vary upward from

the Guidelines range and sentence him to the statutory maximum. But we will “not

examine the weight a district court assigns to various § 3553(a) factors, and its

ultimate assessment of the balance between them” anew. Smart, 518 F.3d at 808.

Given Defendant’s repeated run-ins with the law, we cannot say the court “exceeded

the bounds of permissible choice” in its sentence. Garcia, 946 F.3d at 1211

(quotation omitted).

AFFIRMED IN PART AND DISMISSED IN PART.

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