UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5014

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES ELMER GROSS, SR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. J. Frederick Motz, District Judge.

(1:02-cr-00201-JFM)

Submitted: August 29, 2007 Decided: November 5, 2007

Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT, P.C.,

Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United

States Attorney, Christine Manuelian, Assistant United States

Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

James Elmer Gross, Sr. (hereinafter “Gross”) appeals the

district court’s judgment on remand for resentencing under United

States v. Booker, 543 U.S. 220 (2005). Finding no error, we

affirm.

Gross first contends the court erred by punishing him for

a drug quantity greater than that found by the jury or admitted by

him. Count Three of the superseding indictment alleged

distribution of one kilogram or more of heroin and five kilograms

or more of cocaine. The district court found by a preponderance of

the evidence, after considering the advisory nature of the

guidelines, a quantity of three to ten kilograms of heroin. 

As alleged in the superseding indictment, Gross faced a

maximum possible sentence of life imprisonment. 21 U.S.C.A.

§ 841(b)(1)(A) (West 2000 & Supp. 2007). Following Booker, the

federal sentencing guidelines are now advisory. However, when

calculating guideline ranges, sentencing courts may still make

factual determinations regarding sentencing enhancement by a

preponderance of the evidence. United States v. Morris, 429 F.3d

65, 72 (4th Cir. 2005). 

As the indictment alleged Gross was responsible for one

kilogram or more of heroin, and as the district court’s finding of

three to ten kilograms did not increase Gross’ sentence beyond the

prescribed statutory maximum, Gross’ first challenge to the
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district court’s findings of fact is without merit. See Booker,

543 U.S. at 244; Apprendi v. New Jersey, 530 U.S. 466, 490 (2000);

United States v. Hughes, 401 F. 3d 540, 546 (4th Cir. 2005). 

Gross next attacks the district court’s finding that he

possessed a firearm during the commission of a drug offense. Gross

asserts that no evidence was presented that he possessed a firearm.

Also, Gross did not admit to possession of a firearm, and he was

not found guilty beyond a reasonable doubt by the jury of

possession of a firearm. Accordingly, Gross asserts that the

district court erred in enhancing his sentence two levels under

U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2002). 

Section 2D1.1(b)(1) provides for a two level increase to

a defendant’s base offense level if the defendant possessed a

dangerous weapon during a drug offense. A § 2D1.1 enhancement is

to be applied unless it is clearly improbable that the weapon was

connected with the offense. U.S.S.G. § 2D1.1, cmt. n.3. “It is

well established that even where no conspiracy is charged,

enhancement is appropriate where a firearm is physically possessed

by another participant in the offense conduct to further the

illegal enterprise.” United States v. Falesbork, 5 F.3d 715, 720

(4th Cir. 1993). 

Because there was overwhelming evidence that Gross’ coconspirators possessed weapons during and in furtherance of the

course of the criminal conduct for which Gross was convicted and as
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this possession was reasonably foreseeable by Gross, the court did

not err in enhancing Gross’ sentence under § 2D1.1. 

Gross raises a third challenge to the district court’s

calculation of his advisory guidelines range. Based on Gross’

three prior convictions, the district court determined Gross to be

a career offender. According to Gross, one of those three

convictions was a 2001 conviction for distribution of heroin.

Gross argues that this conviction cannot be used to enhance his

guidelines range because the heroin distribution was a specific

predicate act used to convict him of RICO violations under Count

One. This court rejected the argument Gross makes now in Gross’

and co-defendant Ronald Eddie’s prior appeal. United States v.

Gross, 199 F. App’x 219, 244 (4th Cir. 2006) (unpublished).

Accordingly, Gross’ third alleged error is without merit. 

Gross’ final argument on appeal is that his sentence was

unreasonable. Gross argues that his sentence of 600 months was

unreasonable as it was, due to his age, a de facto life sentence.

Also, Gross argues that the district court imposed a variance

sentence and failed to adequately explain the reasons for the

variance. 

Following Booker, a sentencing court must engage in a

multi-step process at sentencing. After calculating the correct

guidelines range, the sentencing court must consider the guidelines

range, any relevant factors set forth in the guidelines, and the
*

Gross’ 600-month sentence fell in his guidelines range of 360

months to life, so this was not a variance sentence.

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factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007); then the

court may impose sentence. United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005). Considering the factors in § 3553(a) does not

require “discussion of each factor in a checklist fashion.” United

States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006). 

On appeal, this court reviews a sentence to determine

whether it is reasonable. Moreland, 437 F.3d at 433. A

post-Booker sentence may be unreasonable for procedural or

substantive reasons. However, a sentence that falls within a

properly calculated advisory guidelines range is presumed to be

reasonable. Rita v. United States, 127 S.Ct. 2456, 2462 (2007). 

Gross’ sentence was procedurally reasonable. In imposing

sentence, the district court recognized the advisory nature of the

guidelines and discussed the applicability of the § 3553(a) factors

to Gross’ case. The district court specifically noted that: (1)

the nature and circumstances of the offense evidence a total

disrespect for the law; (2) a severe sentence was necessary to

reflect the seriousness of the offense and to promote respect for

the law; (3) a severe sentence was necessary to deter others; and

(4) a severe sentence was necessary to protect the public from

Gross. The court then sentenced Gross to 600 months’ imprisonment,

which fell within Gross’ advisory guidelines range.*
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Gross’ sentence was also substantively reasonable. Gross

was the leader of a large drug conspiracy and was responsible for

a number of criminal acts, including distributing five or more

kilograms of cocaine and three to ten kilograms of heroin.

Additionally, Gross had a significant criminal history that

included the rape of a twelve year old, which occurred while he was

on supervised release for a prior drug offense. As Gross’ sentence

fell within his properly determined guidelines range, Gross’

sentence is presumed to be reasonable. Gross has failed to rebut

the presumption of reasonableness.

We affirm the judgment of the district court. We

dispense with oral argument as the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process. 

AFFIRMED