United States v. Robert Gregory

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 21, 2023
• Docket: 21-4152
• Status: Unpublished

Opinion

USCA4 Appeal: 21-4152 Doc: 26 Filed: 03/21/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4152

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT L. GREGORY,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:18-cr-00014-JPB-JPM-7)

Submitted: January 27, 2023 Decided: March 21, 2023

Before NIEMEYER, KING, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Diana Stavroulakis, Weirton, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Shawn M. Adkins, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

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PER CURIAM:

Robert L. Gregory pled guilty, without a written plea agreement, to conspiracy to

possess with the intent to distribute and distribute quantities of methamphetamine, heroin,

cocaine, and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846. The

district court overruled Gregory’s objection to the drug quantity attributed to him and

sentenced him to 210 months’ imprisonment, the bottom of his advisory Sentencing

Guidelines range. On appeal, Gregory argues that the district court clearly erred in

concluding that the Government established by a preponderance of the evidence that the

crystal methamphetamine (“ice”) seized from Cedric Douglas’ truck was reasonably

foreseeable to Gregory as part of the conspiracy. We affirm.

“For sentencing purposes, the government must prove the drug quantity attributable

to a particular defendant by a preponderance of the evidence.” United States v. Bell,

667 F.3d 431, 441 (4th Cir. 2011). “Under the Guidelines, the drug quantities that may be

attributed to the defendant include the quantities associated with the defendant’s offense of

conviction and any relevant conduct. Relevant conduct in conspiracy cases includes all

reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity” and “within the scope of the defendant’s agreement.” United States v.

Flores-Alvarado, 779 F.3d 250, 255 (4th Cir. 2015) (cleaned up); see USSG

§ 1B1.3(a)(1)(B). Sentencing courts are required “to make particularized findings with

respect to both the scope of the defendant’s agreement and the foreseeability of the conduct

at issue.” Flores-Alvarado, 779 F.3d at 256 (cleaned up).

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Whether a quantity of drugs involved in the conspiracy is foreseeable to a defendant

“is a question of fact which will only be overturned on appeal if it is clearly erroneous.”

United States v. Williams, 19 F.4th 374, 384 (4th Cir. 2021) (internal quotation marks

omitted), cert. denied, 142 S. Ct. 1392 (2022). “The Court will not find clear error unless

on the entire evidence, we are left with the definite and firm conviction that a mistake has

been committed.” United States v. Shivers, 56 F.4th 320, 324 (4th Cir. 2022) (internal

quotation marks omitted).

While there was some evidence distancing Gregory from the ice seized from

Douglas’ truck, there was ample evidence supporting the district court’s conclusion that

the Government established by a preponderance of the evidence that the shipment was

reasonably foreseeable to Gregory as part of the conspiracy. Accordingly, we affirm the

district court’s judgment.

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