Filed: Mar. 24, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4141 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY DONEARL EASTERLING, a/k/a Smoke, a/k/a Dion A. Foster, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:12-cr-00013-1) Submitted: November 25, 2013 Decided: March 24, 2014 Before AGEE, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublish
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4141 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY DONEARL EASTERLING, a/k/a Smoke, a/k/a Dion A. Foster, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:12-cr-00013-1) Submitted: November 25, 2013 Decided: March 24, 2014 Before AGEE, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublishe..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY DONEARL EASTERLING, a/k/a Smoke, a/k/a Dion A.
Foster,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:12-cr-00013-1)
Submitted: November 25, 2013 Decided: March 24, 2014
Before AGEE, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas J. Gillooly, Charleston, West Virginia, for Appellant.
Richard Gregory McVey, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Donearl Easterling appeals the eighty-four-
month sentence imposed by the district court following his
guilty plea to possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a) (2012), and possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A) (2012). In accordance with
Anders v. California, 386 U.S. 738 (1967), Easterling’s counsel
has filed a brief certifying that there are no meritorious
grounds for appeal but questioning whether the evidence before
the district court was sufficient to sustain its determination
that one of Easterling’s prior convictions properly counted
toward the calculation of Easterling’s criminal history
category. Easterling has filed a supplemental brief in which he
echoes and supplements counsel’s arguments. Finding no error,
we affirm.
We review Easterling’s sentence for reasonableness,
using an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). We must first review for “significant
procedural error[s],” including improperly calculating the
Guidelines range, failing to consider the 18 U.S.C. § 3553(a)
(2012) factors, sentencing under clearly erroneous facts, or
failing to adequately explain the sentence.
Gall, 552 U.S. at
51; United States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008).
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Only if we find a sentence procedurally reasonable may we
consider its substantive reasonableness. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). Because Easterling
properly preserved the issue, we review for clear error the
district court’s findings of fact underlying its calculation of
Easterling’s criminal history category. United States v.
McManus,
23 F.3d 878, 882 (4th Cir. 1994); United States v.
Rusher,
966 F.2d 868, 880 (4th Cir. 1992).
A bit of background information is necessary.
Easterling was convicted of a Michigan narcotics offense in June
1995 and received an eighteen-month to twenty-year sentence
(“1995 offense”). Easterling was paroled in November 1996. He
absconded from parole in April 1997 and committed a second
Michigan narcotics offense in September 1997 (“1997 offense”),
for which he was sentenced to one to four years of imprisonment.
Easterling was again paroled in September 1998. Thereafter,
Easterling’s parole was revoked in February 2000, and he
remained incarcerated until January 2003. Easterling remained
on parole until July 2010, at which point he was unconditionally
discharged.
However, the Michigan state records detailing
Easterling’s incarceration history were unclear regarding which
of his two sentences supported Easterling’s approximate three-
year incarceration following the revocation of his parole in
3
February 2000. Attempting to explain the ambiguity, Easterling
suggested that the sentence for his 1995 offense was discharged
as part of the plea to his 1997 offense, thus leaving the
sentence for his 1997 offense as the sole basis for his
subsequent incarceration. Therefore, Easterling argued, his
1995 offense fell outside the applicable fifteen-year window.
U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.2(e)(1) (2012).
Although failing to produce supporting records, Easterling
argued that, under typical sentencing practices, this was a
logical explanation of the seemingly unclear Michigan state
records. An examination of Michigan’s sentencing and parole
scheme, however, indicates otherwise.
The maximum term of imprisonment or period of parole
Easterling could have served for his 1997 offense was four
years, meaning that, if in fact the sentence for his 1995
offense was discharged as part of a plea agreement, Easterling
would have been subject to unconditional release from the
Michigan penal system in 2001. See Shaya v. Holder, 586 F.3d
401, 408 (6th Cir. 2009) (explaining that, in Michigan, “there
is no guarantee that an incarcerated person will be released
from prison after the person has completed his or her minimum
sentence [because] the parole board retains the discretion to
keep a person incarcerated up to the maximum sentence authorized
by the jury’s verdict”) (internal quotation marks and alteration
4
omitted); People v. Matelic, 641 N.W.2d 252, 264 (Mich. Ct. App.
2001), overruled in part on other grounds by People v. Stewart,
698 N.W.2d 340 (Mich. 2005). However, the state records clearly
indicate that, following the revocation of his parole in
February 2000, Easterling remained incarcerated until January
2003, necessarily indicating that Easterling was incarcerated
pursuant to the sentence for his 1995 offense following
conviction for his 1997 offense. This conclusion is further
confirmed by Michigan court records indicating that the sentence
for Easterling’s 1997 offense was imposed to run consecutively
to the sentence for his 1995 offense, as Michigan law dictates.
See People v. Idziak,
773 N.W.2d 616, 621-22 (Mich. 2009)
(Michigan requires consecutive sentencing for parolees who
reoffend while released). Accordingly, we conclude that there
is no clear error in the district court’s calculation of
Easterling’s criminal history category.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious grounds for appeal. We
therefore affirm the district court’s judgment. We also decline
to address, in this appeal, Easterling’s claim regarding
problems with the prison’s mail system, a civil matter not
properly addressed in this criminal appeal, or his claim of
ineffective assistance of counsel, as the record does not
conclusively demonstrate any deficiencies in counsel’s
5
performance. This court requires that counsel inform
Easterling, in writing, of his right to petition the Supreme
Court of the United States for further review. If Easterling
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Easterling.
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
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