United States of America v. Mercedes W. Gregory

United States Court of Appeals
For the Eighth Circuit
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No. 23-2250
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Mercedes W. Gregory,
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: February 12, 2024
Filed: July 30, 2024
[Unpublished]
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Before LOKEN, COLLOTON,1 and KELLY, Circuit Judges.
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PER CURIAM.
Mercedes Gregory pleaded guilty to robbery in violation of the Hobbs Act and
to unlawful possession of a firearm as a felon. See 18 U.S.C. §§ 1951(a), 922(g)(1).
1Judge Colloton became chief judge of the circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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The district court2 sentenced Gregory to 130 months’ imprisonment. On appeal,
Gregory argues that the district court relied on clearly erroneous facts and imposed
an unreasonable sentence. We affirm.
The charges arose from an incident at a Kohl’s department store. Douglas
Stevens, a loss-prevention employee, observed Gregory attempting to steal items from
the store. Stevens followed Gregory outside and heard Gregory say something like:
“If you keep following me, I’m going to shoot you.” Stevens testified at sentencing
that he stopped his pursuit after he saw the handle of a handgun at Gregory’s waist.
Gregory left the Kohl’s with approximately $435 in stolen merchandise. Around
eight hours later, law enforcement officers apprehended Gregory at a gas station and
found a stolen handgun in his possession.
A grand jury charged Gregory with Hobbs Act robbery, see id. § 1951(a),
brandishing a firearm in furtherance of that robbery, see id. § 924(c)(1)(A)(ii), and
unlawfully possessing a firearm as a felon. See id. § 922(g)(1). Gregory pleaded
guilty to robbery and to unlawful possession of a firearm, and the government
dismissed the charge of brandishing a firearm under § 924(c)(1). Gregory stipulated
that he threatened to shoot Stevens.
The presentence investigation report recommended the application of a four-
level increase for Gregory’s possession of a firearm in connection with another felony
offense. See USSG § 2K2.1(b)(6)(B). The district court adopted the report and
sentenced Gregory at the bottom of the advisory guideline range of 130 to 162
months’ imprisonment.
Gregory first argues that the court committed procedural error by applying the
four-level increase. He contends that there was insufficient evidence that he
2The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
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possessed a firearm in connection with the robbery. The district court’s determination
is a factual finding that we review for clear error. United States v. Smith, 535 F.3d
883, 885 (8th Cir. 2008).
The guidelines require the four-level increase if the defendant “used or
possessed any firearm or ammunition in connection with another felony offense.”
USSG § 2K2.1(b)(6)(B). This provision applies when the possession of a firearm
“facilitated or had the potential to facilitate the offense,” but not when the possession
was the result of “mere accident or coincidence.” United States v. Guiheen, 594 F.3d
589, 591 (8th Cir. 2010) (internal quotation omitted); see USSG § 2K2.1, comment.
(n.14(A)).
The district court found that Gregory carried a firearm during the robbery.
Gregory maintains that this finding was error because Stevens’s testimony was
inconsistent with surveillance footage. He notes that the firearm was not visible in
the video and Stevens misjudged the distance between himself and Gregory. But
Stevens testified that he saw the firearm during a portion of the video when Gregory
was hidden from the camera’s view by a tree. The district court’s credibility
determinations are virtually unreviewable on appeal, United States v. Quinto-Pascual,
9 F.4th 797, 802 (8th Cir. 2021), and misjudging a distance during an active robbery
does not make Stevens’s testimony “so internally inconsistent or implausible on its
face that a reasonable fact-finder would not credit it.” See United States v. Heath, 58
F.3d 1271, 1275 (8th Cir. 1995).
The district court also found that Gregory’s possession facilitated his offense.
Ready access to a firearm can facilitate wrongdoing by emboldening the wrongdoer.
Guiheen, 594 F.3d at 591-92. The officer here testified that the gun chilled his
attempt to thwart the robbery. The district court’s determination that Gregory
possessed a firearm in connection with the robbery was not clearly erroneous.
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Gregory also argues that his sentence at the bottom of the guideline range was
unreasonable. We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). A
sentence within the advisory range is presumed reasonable. United States v. Haynes,
62 F.4th 454, 460 (8th Cir. 2023).
Gregory argues that the court failed to consider mitigating factors presented in
his sentencing memorandum, the presentence report, and his counsel’s statements at
sentencing. But the judge heard counsel’s argument and said that he reviewed the
materials. “[A] district court’s awareness of the defendant’s arguments precludes any
conclusion that the district court abused its discretion by failing to consider them.”
United States v. Johnson, 619 F.3d 910, 922 (8th Cir. 2010). “[A] district court is not
required to address every argument for mitigation brought by defense counsel.”
United States v. Edwards, 65 F.4th 996, 999 (8th Cir. 2023). Gregory also complains
that the court overstated the seriousness of his offense, because he stole only $435 of
merchandise. This argument overlooks that Gregory threatened to inflict serious
bodily harm to another person while taking the merchandise. There was no abuse of
discretion in selecting a sentence.
The judgment of the district court is affirmed.
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