United States v. Dennis Pulley

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 17, 2025
• Docket: 23-4323
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4323

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DENNIS PULLEY, a/k/a Denmo,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, Chief District Judge. (1:16-cr-00597-GLR-8)

Submitted: October 17, 2024 Decided: January 17, 2025

Before DIAZ, Chief Judge, NIEMEYER, Circuit Judge, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant. Jason Daniel Medinger, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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PER CURIAM:

Dennis Pulley was convicted, following a jury trial, of conspiracy to commit

racketeering acts, in violation of 18 U.S.C. § 1962(d) (Count 1); conspiracy to distribute

and possess with intent to distribute one kilogram or more of heroin, in violation of 21

U.S.C. §§ 841(a)(1), 846 (Count 3); possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 9); and being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 10). The district

court sentenced Pulley below the advisory Sentencing Guidelines range of life in prison to

an aggregate term of 420 months’ imprisonment, to be followed by 5 years of supervised

release. Pulley appealed, and we affirmed the judgment save as to Count 10, which we

vacated pursuant to Rehaif v. United States, 588 U.S. 225 (2019). See United States v.

Barronette, 46 F.4th 177, 198-201 (4th Cir. 2022). We thus vacated the criminal judgment

and remanded the matter for further proceedings.

On remand, the Government opted to dismiss Count 10. After conducting a full

resentencing, the court again varied downward below the advisory Guidelines

recommendation of a life sentence and imposed the same downward variant 420-month

sentence to be followed by 5 years of supervised release. Pulley timely appealed.

Counsel for Pulley has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious grounds for appeal but seeking review of the

imposed custodial sentence and asking whether the district court complied with our

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Rogers 1 jurisprudence in its handling of the conditions of the reimposed term of supervised

release. Pulley has filed several pro se supplemental briefs in which he argues, 2 in most

relevant part, that the district court erred in determining his criminal history score. The

Government has not filed a response brief. For the reasons explained below, we affirm the

amended criminal judgment.

First, we review a sentence for reasonableness by “applying a ‘deferential abuse-of-

discretion standard.’” United States v. McCain, 974 F.3d 506, 515 (4th Cir. 2020) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)). In doing so, this court’s “inquiry proceeds

in two steps.” United States v. Friend, 2 F.4th 369, 379 (4th Cir. 2021). We must first

examine whether the district court procedurally erred by “‘failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing

to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.’” Id. (quoting Gall,

552 U.S. at 51). Then, if the court committed no procedural error, we review the

substantive reasonableness of the sentence, “tak[ing] into account the totality of the

circumstances to determine whether the sentencing court abused its discretion in

1 See United States v. Rogers, 961 F.3d 291 (4th Cir. 2020) (holding that district courts must orally pronounce all nonmandatory conditions of supervised release at the sentencing hearing); see also United States v. Singletary, 984 F.3d 341 (4th Cir. 2021) (holding Rogers claim was not foreclosed by waiver of defendant’s right to appeal sentence because, given the court’s failure to orally pronounce the discretionary conditions, “he has never been sentenced to those conditions at all”). 2 We grant Pulley’s motion for leave to supplement his pro se supplemental brief, but deny his request to withdraw counsel’s Anders brief.

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concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United

States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation marks omitted).

Because Pulley failed to challenge the Guidelines calculations at resentencing, we

are limited to plain error review. See United States v. Harris, 890 F.3d 480, 490 (4th Cir.

2018). Under this standard, we “will correct an unpreserved error if (1) an error was made;

(2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 491

(internal quotation marks omitted).

Consistent with counsel’s concession, we agree that the district court did not plainly

procedurally err in resentencing Pulley. That is, the district court correctly calculated the

advisory Guidelines range, 3 sufficiently addressed defense counsel’s arguments for a lower

sentence, adequately considered the § 3553(a) factors, and provided a meaningful

explanation for the selected sentence that was rooted in the § 3553(a) sentencing factors.

See Friend, 2 F.4th at 379.

3 Regarding Pulley’s pro se challenge to the computation of his criminal history score, on this record, we discern no plain error. Even if Pulley is correct and some of his prior convictions were improperly scored, this does not affect Pulley’s substantial rights because Pulley’s total adjusted offense level of 43 corresponds with a life sentence regardless of the defendant’s criminal history category. See U.S. Sentencing Guidelines Manual ch. 5, pt. A (sentencing table) (2018); see also United States v. Fowler, 58 F.4th 142, 150 (4th Cir. 2023) (observing that, when assessing if a sentencing error affects defendant’s substantial rights, this “generally means that there must be a reasonable probability that, but for the error, the outcome of the proceeding would have been different” (internal quotation marks omitted)).

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Nor did our review of the record reveal anything to overcome the presumption of

substantive reasonableness afforded the below-Guidelines sentence. United States v.

Gillespie, 27 F.4th 934, 945 (4th Cir. 2022); United States v. Vinson, 852 F.3d 333, 357-

58 (4th Cir. 2017). Pulley’s lone attempt to rebut this presumption suggests that, by

reimposing the same 420-month sentence—after our vacatur of the conviction on Count

10—the district court’s sentencing decision was “presumptively excessive or vindictive.”

(Anders Br. at 19). Counsel ultimately concludes, though, that this argument is meritless,

citing United States v. Ventura, 864 F.3d 301 (4th Cir. 2017). We agree.

In Ventura, we determined that, rather than assessing a new sentence “under the so-

called count-by-count approach,” we employ “the aggregate package approach.” 864 F.3d

at 310. Utilizing this method, “a sentence is not problematic so long as the ultimate

sentence for one or more counts does not exceed that given for all counts sentenced at the

conclusion of the first trial.” Id. at 311 (internal quotation marks omitted). Because

Ventura’s aggregate sentence was not increased, despite this court having vacated one of

his convictions, we rejected “his attempt to establish a presumption of vindictiveness.” Id.

Ventura thus forecloses any suggestion of vindictiveness arising by virtue of the

court reimposing the same aggregate 420-month sentence despite our vacatur of the

conviction on Count 10. Pulley points to no affirmative evidence of vindictiveness to

establish this claim, absent a presumption of vindictiveness, and our plenary review of the

record did not reveal any such evidence.

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Finally, we consider whether the district court’s imposition of a 5-year term of

supervised release comported with our Rogers jurisprudence. Once again, we agree with

counsel’s position that there is no reversible Rogers error here.

On remand, the district court noted a Rogers error that arose in the context of

Pulley’s initial sentencing, identified the terms and conditions of supervised release

enumerated in the initial judgment, and allowed Pulley to confer with his attorney about

those conditions. Both Pulley and his attorney advised the court that there were no

objections to those conditions. At that point, then, Pulley was aware of the previously

applied conditions and declined to argue that any of them were inappropriate or otherwise

objectionable. Near the conclusion of sentencing, the district court expressly adopted by

reference the previously imposed standard, mandatory, and special conditions of

supervised release, which Pulley and his attorney had reviewed and about which no

objection had been made.

Under the circumstances, we hold that the district court’s later reference to the

previously imposed conditions was sufficient to put Pulley on notice that the conditions

imposed in his original written judgment would also be imposed in the amended written

judgment. The court’s actions thus satisfied the overarching purpose of Rogers, to wit: to

afford the defendant the opportunity to object to the nonmandatory supervised release

conditions in open court. See Rogers, 961 F.3d at 298 (explaining that “foregoing oral

pronouncement of discretionary conditions will leave defendants without their best chance

to oppose supervised-release conditions that may cause them unique harms and thus

directly implicate their right to be present at sentencing”).

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In accordance with Anders, we have reviewed the entire record in this case and have

found no potentially meritorious grounds for appeal. We therefore affirm the district

court’s amended criminal judgment. This court requires that counsel inform Pulley, in

writing, of the right to petition the Supreme Court of the United States for further review.

If Pulley requests that a petition be filed, but 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 Pulley.

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