United States of America v. Keith Gray

United States Court of Appeals
For the Eighth Circuit
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No. 22-1641
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Keith Gray
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 13, 2023
Filed: March 10, 2023
[Unpublished]
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Before GRASZ, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
Keith Gray possessed firearms and drugs while on supervised release, in
violation of the terms of his supervised release and federal law. The district court1
1 The Honorable Stephen R. Clark, Chief Judge, United States District Court
for the Eastern District of Missouri.

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imposed sentences for the supervised release violation and the new law violation to
run consecutively. Gray appeals his revocation sentence, arguing the district court
committed procedural error by treating a Guideline reference to consecutive sentences
as mandatory. See U.S.S.G. § 7B1.3(f). We affirm.2
In 2018, Gray pled guilty to possessing a defaced firearm in violation of 18
U.S.C. § 922(k). In August 2019, Gray began a three-year term of supervised release.
During 2020, police repeatedly found him in possession of firearms and controlled
substances.
A grand jury in the Eastern District of Missouri indicted Gray for being a felon
in possession of a firearm in October 2020. In July 2021, the probation office filed
a revocation petition. Gray pled guilty to the possession charge and admitted the
violations of supervised release. The district court held a combined sentencing for
the new charge and the revocation. Both the government and Gray recommended the
revocation sentence run concurrently with the sentence for the new charge.
The district court sentenced Gray to within-Guideline-range sentences for both
the new violation and revocation, ordering the sentences to run consecutively. At the
hearing, the district court noted the “guidelines are very clear that, on a supervised
release revocation . . . there’s to be incremental punishment unless there’s exceptional
circumstances[.]” Gray argues this comment means the district court treated the
Guidelines as mandatory and committed a procedural error. See Gall v. United States,
552 U.S. 38, 51 (2007).
“In reviewing a sentence for significant procedural error, we review a district
court’s factual findings for clear error and its interpretation and application of the
guidelines de novo.” United States v. Marshall, 891 F.3d 716, 719 (8th Cir. 2018)
2 The September 8, 2022 motion to supplement the record is denied as moot.
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(citations omitted). We do not view “phrase[s] in isolation” when reviewing
allegations that a district court viewed a Guideline as mandatory. United States v.
Smith, 983 F.3d 1006, 1009 (8th Cir. 2020). Rather, we view “the record in its
entirety[.]” Id. Here, the sentencing transcript makes clear that the district court
knew “the court can vary” from the Guidelines. Instead of erroneously treating the
Guidelines as presumptively reasonable or mandatory, the district court expressed
concern that if the sentences run concurrently “there’s no consequences for the
supervised release revocation violation[,]” a result which may “encourage[] bad
behavior or at least doesn’t fully discourage that behavior while on supervised
release, so I just think that’s the wrong message to send here.” And, the district court
stated that “the supervised release violations here are numerous, they’re extensive,
[and] they’re serious[.]”
To the extent Gray argues separately that his sentence is substantively
unreasonable, “[w]e review the reasonableness of a revocation sentence under the
same deferential abuse-of-discretion standard that applies to initial sentencing
proceedings.” United States v. Elbert, 20 F.4th 413, 416 (8th Cir. 2021). We find
no abuse of discretion in imposing the within-Guideline-range sentence. United
States v. St. Claire, 831 F.3d 1039, 1043 (8th Cir. 2016) (within-Guideline-range
sentence is accorded a rebuttable presumption of substantive reasonableness on
appeal).
The record shows the district court understood the Guidelines as advisory and
properly exercised its discretion. We affirm the judgment of the district court.
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