IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case No. 3:20cr57/MCR

RAY ANTONIO MANUEL, JR.

_____________________________/

GOVERNMENT’S SENTENCING MEMORANDUM

COMES NOW, the United States of America, by and through the

undersigned Assistant United States Attorney, and respectfully submits the 

following sentencing memorandum. The defendant contends his Total Offense 

Level and Criminal History Category score should be lower than calculated by the 

Probation Office, thereby reducing his calculated guideline imprisonment range. 

As is shown below, the defendant’s Criminal History Category is properly set at a 

level VI. The government contends that the calculations in the Final Presentence 

Report are correct and no additional adjustments are warranted. However, even if 

this Court adjusts the defendant’s offense level or criminal history category, his 

ultimate sentence should be no less than the statutory maximum of 120 months 

imprisonment based on his conduct and extensive criminal history, much of which 

was not counted for sentencing purposes. 

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Sentencing Facts

1. The Probation Office has filed the Final Presentence Report (PSR),

which resolved the defendant’s objections related to obstruction of justice and 

acceptance of responsibility. As adjusted, the defendant’s Total Offense Level is 

25. (PSR ¶ 49). 

2. The Probation Office assessed 17 criminal history points for the

defendant’s convictions in seven cases, which set his Criminal History Category at 

VI. (PSR ¶¶ 61, 62, 63, 65, 67, 68, 69, & 71). No adjustments were made to the 

defendant’s criminal history in the final Presentence Report. (PSR ¶¶ 149-151). 

3. With at Total Offense Level of 25 and Criminal History Category of VI,

the defendant’s calculated guideline imprisonment range is set at 110 to 137 

months, although capped at 120 months due to the statutory maximum. (PSR 

¶ 15).

4. The defendant’s unresolved objection related to his Total Offense Level

involves the 4-level increase assessed for use or possession of a firearm or 

ammunition in connection with another felony offense pursuant to USSG 

§ 2K2.1(b)(6)(B). (Doc. 35, p. 6). He objects to using the facts related to the 

February drive-by shooting to support this enhancement, noting that the state 

charges related to that offense were dismissed. (Id.). Contrary to the defendant’s 

argument, this assessment is proper, as reiterated by the Probation Office in the 

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final PSR at paragraphs 147 and 148. This increase is supported by the 

defendant’s possession of a firearm in connection with the February drive-by 

shooting, as well as his use of a firearm in connection with multiple felonies 

committed on March 18, 2020, which further supports the assessment of 4 levels 

pursuant to USSG § 2K2.1(b)(6)(B). 

5. Regarding the criminal history calculation, the defendant argues that his

criminal history category was improperly calculated because, he claims, multiple 

offenses that were “functionally consolidated” were erroneously counted 

separately. (Doc. 35, pp. 6-8; Doc. 36). Pursuant to U.S.S.G. § 4A1.2(a)(2), the 

defendant’s prior sentences, though consolidated for sentencing in state court, were 

properly scored as separate offenses because each was committed after an 

intervening arrest. 

Memorandum of Law

Offense Level

When a defendant is charged with an offense related to unlawful possession 

of a firearm or ammunition, the Sentencing Guidelines provide for a 4-level

increase in the offense level if the defendant used or possessed any firearm or 

ammunition in connection with another felony offense. U.S.S.G. § K2.1(b)(6)(B). 

In the Commentary, Application Note 14 explains that subsection (b)(6)(B) applies 

if the firearm or ammunition facilitated, or had the potential to facilitate, another 

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felony offense. USSG § 2K2.1(b)(6)(B), comment. (n.14A). The Commentary 

further explains that “another felony offense” means any federal, state, or local 

felony offense, other than the explosive or firearms possession or trafficking 

offense, regardless of whether a criminal charge was brought, or a conviction 

obtained. USSG § 2K2.1(b)(6)(B), comment. (n.14C).

The evidence in this case shows that a car matching the description of the 

one the defendant drove on March 18, 2020, was used in a drive-by shooting on 

February 18, 2020. (PSR ¶¶ 13, 17). Phone records established that on the night 

of the shooting, the defendant’s phone made two telephone calls from the area 

where the shooting took place. (PSR ¶ 24). Laboratory testing confirmed that the 

shell casings found at the scene of the drive-by shooting and in the defendant’s car 

in March were fired by the firearm the defendant carried on March 18, 2020, while 

fleeing from law enforcement. (PSR ¶¶ 25-28). The deputy who chased the 

defendant by car and on foot in March positively identified the defendant as the 

driver of the car. (PSR ¶¶ 17-20). In addition to the circumstantial evidence 

establishing the defendant possessed a firearm connection with the February driveby shooting, the evidence also establishes he possessed a firearm in connection 

with the charged state felony offenses listed in PSR ¶ 74, including Resisting an 

Officer Without Violence. Because the evidence establishes by a preponderance 

that the defendant used or possessed a firearm in connection with multiple other 

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felony offenses, the 4-level increase was properly assessed. 

Criminal History Calculation

The Sentencing Guidelines direct that when computing criminal history, if 

the defendant has multiple prior sentences, we must first determine whether those 

sentences are counted separately or treated as a single sentence. U.S.S.G. 

§ 4A1.2(a)(1) and (2). Section 4A1.2(a)(2) further directs that prior sentences 

always are counted separately if the sentences were imposed for offenses that were 

separated by an intervening arrest, that is, the defendant was arrested for the first 

offense prior to committing the second offense. U.S.S.G. § 4A1.2(a)(2).

In this case, the probation officer assessed 17 criminal history points. (PSR 

¶ 71). According to the Sentencing Table, 13 or more criminal history points sets a 

criminal history category of VI. The PSR shows the following offense were scored 

and totaled at 17 criminal history points:

¶ 61- arrested March 9, 2006, posted bond (3 points);

¶ 62- FTA 6/12/06; arrested on capias July 13, 2006, posted bond (3 points);

¶ 63 - arrested May 15, 2006, posted bond (3 points);

¶ 65 - arrested June 23, 2006, posted bond (3 points);

¶ 67- arrested October 14, 2009, posted bond (1 point); 

¶ 68 – arrested November 21, 2009, posted bond 12/18/ 2009 (3 points);

¶ 69 – arrested May 4, 2010, posted bond (1 point). 

The defendant contends he should be assessed a total of only three points for 

the convictions in paragraphs 61, 62, 63, and 65 because they were consolidated 

for sentencing. (Doc. 35, p. 6). He likewise contends the convictions in 

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paragraphs 67, 68, and 69 should be assessed only three points because they also 

were consolidated for sentencing. (Doc. 36, pp. 2-4). He concludes then that his 

total criminal history points would be six resulting in a criminal history category of 

III rather than VI. (Doc. 36, p. 5). 

The defendant’s argument overlooks the command in the first part of 

U.S.S.G. § 4A1.2(a)(2), which directs that prior sentences always are counted 

separately if the sentences were imposed for offenses that were separated by an 

intervening arrest. U.S.S.G. § 4A1.2(a)(2). In United States v. Denson, 749 

Fed.Appx. 948, 949 (11th Cir. 2019), the defendant appealed his sentence, arguing 

the district court erred in counting separately his two prior convictions because he 

was sentenced for both on the same day. On appeal, the court examined the 

defendant’s sentence guided by U.S.S.G. § 4A1.2(a)(2) and affirmed the district 

court. Id. The Denson Court noted that the undisputed record showed that after 

Denson’s arrest on the first marijuana offense, five months passed before he 

committed and was arrested for the second marijuana offense. Id., pp. 949-50. 

The court found the district court properly counted the prior offenses separately 

because the offenses were separated by an intervening arrest. Id., p. 950; see 

United States v. Reed, 830 F.3d 1, 5 (1st Cir. 2016) (§ 4A1.2(a)(2) regarding 

condition B, consolidation for sentencing, applies only if there is no intervening 

arrest between the predicate offenses).

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Here the record establishes there were intervening arrests between the 

offenses assessed criminal history points. Because U.S.S.G. § 4A1.2(a)(2) directs 

that such offenses are always counted separately, the Probation Office properly 

counted them separately and assessed criminal history points for each. Therefore, 

the defendant’s criminal history category must remain at VI. 

Finally, even if the defendant’s guideline range is lowered due to 

adjustments in his offense level or criminal history category, the defendant’s 

sentence should be no lower than the 120-month statutory maximum. The 

defendant’s history and characteristics show a pattern of violence and firearm 

possession insufficiently accounted for in his scored criminal history. 

WHEREFORE, the government respectfully requests the Court consider the 

foregoing memorandum in sentencing the defendant.

Respectfully submitted,

JASON R. COODY

Acting United States Attorney

/s/ Nancy J. Hess

NANCY J. HESS

Assistant United States Attorney

Florida Bar No. 0607169

21 East Garden Street, Suite 400

Pensacola, Florida 32502

(850) 444-4000

Nancy.Hess@usdoj.gov

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been 

furnished via CM/ECF electronic filing to Donald M. Sheehan, attorney for the 

Defendant on this 16th day of April, 2021

/s/ Nancy J. Hess

NANCY J. HESS

Assistant United States Attorney

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