United States v. Gross
44 F.4th 1298
| 10th Cir. | 2022Background:
- Defendant Martavious Gross, a prohibited person under a prior protective order, admitted he fired a handgun at another driver during a road‑rage incident while seated in a passenger seat.
- After the shooting, Gross gave the handgun to his brother to hide; state troopers later recovered two stolen firearms in the trunk and detained the car's occupants.
- Gross pleaded guilty to possession of a firearm by a prohibited person; his plea agreement contained an appeal waiver that barred challenges to the manner in which the sentence was determined but preserved an appeal on substantive reasonableness if the sentence exceeded the Guidelines range.
- The PSR recommended a Guidelines range of 57–71 months after applying sentencing enhancements; the district court varied upward and imposed the statutory maximum of 120 months, citing Gross’s long, continuous history of violent conduct and danger to the public.
- Gross appealed, asserting (1) the court applied two inapplicable Guidelines enhancements, (2) the court should have left enhancement findings to a jury beyond a reasonable doubt, and (3) the upward variance to 120 months was substantively unreasonable; the government invoked the plea‑waiver to bar procedural challenges.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability/scope of plea appeal waiver | Government: waiver bars appeals attacking the manner the sentence was determined, including Guidelines calculations. | Gross: seeks to preserve procedural challenges despite waiver. | Waiver enforced; challenges that solely attack procedural calculation dismissed. |
| Applicability of two Guidelines enhancements (stolen‑firearm and drive‑by enhancement) | Government: PSR and Gross’s admissions/support application of enhancements. | Gross: no proof he stole or knew the handgun was stolen; conduct could be misdemeanor reckless conduct, so drive‑by enhancement inapplicable. | Procedural challenge to enhancements falls within waiver and is dismissed; court did not reach merits here. |
| Whether enhancement findings required jury (beyond reasonable doubt) | Government: sentencing factfinding by judge permissible under sentencing standards. | Gross: enhancements should be found by a jury beyond a reasonable doubt. | Claim is procedural and barred by waiver; not considered on appeal. |
| Substantive reasonableness of upward variance to statutory maximum | Government: §3553(a) factors (seriousness, deterrence, public protection, Gross’s violent history) support upward variance. | Gross: the variance was unreasonable, constituted double‑counting, overstated his criminal history, and insufficiently weighed mitigating background. | Affirmed: district court did not abuse discretion; §3553(a) factors and district court explanation support the variance to 120 months. |
Key Cases Cited
- United States v. Lonjose, 663 F.3d 1292 (10th Cir. 2011) (review of enforceability of appellate waivers)
- Gall v. United States, 552 U.S. 38 (2007) (abuse‑of‑discretion standard for sentencing review; district court superior position on §3553(a) facts)
- United States v. Barnes, 890 F.3d 910 (10th Cir. 2018) (district court may consider facts already accounted for in Guidelines when weighing §3553(a))
- United States v. Sanchez‑Leon, 764 F.3d 1248 (10th Cir. 2014) (scope of appeal waivers includes challenges to the manner of sentence determination)
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (factors for enforcing appellate waivers and miscarriage‑of‑justice exceptions)
- United States v. Lente, 759 F.3d 1149 (10th Cir. 2014) (mitigating effect of deprived background requires signs of recovery)
- United States v. Garcia, 946 F.3d 1191 (10th Cir. 2020) (defendant must show sentence exceeded bounds of permissible choice to prove abuse of discretion)