UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4826

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY LYNN SANDRETH,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. Stamp, Jr. 

Senior District Judge. (5:11-cr-00031-FPS-JES-1)

Submitted: February 19, 2015 Decided: March 4, 2015

Before GREGORY, SHEDD, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Patricia Valentino Kutsch, KUTSCH LAW OFFICES, Wheeling, West 

Virginia, for Appellant. William J. Ihlenfeld, II, United 

States Attorney, Andrew R. Cogar, Assistant United States 

Attorney, Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gregory Sandreth pleaded guilty to unlawful possession of a 

firearm by a drug user, in violation of 18 U.S.C. §§ 922(g)(3),

924(a)(2) (2012). The district court sentenced Sandreth to 

fifteen months’ imprisonment. On appeal, Sandreth argues that 

the court (1) erroneously applied U.S. Sentencing Guidelines 

Manual § 2K2.1(b) (2010) and (2) imposed a cruel and unusual 

sentence. We affirm.

When analyzing challenges to the application of the 

Sentencing Guidelines, we review questions of fact for clear 

error and questions of law de novo. United States v. Green, 436 

F.3d 449, 456 (4th Cir. 2006). We review the district court’s 

ultimate sentence, however, for abuse of discretion, while 

presuming that a sentence within the properly calculated 

Guidelines range is reasonable. United States v. Go, 517 F.3d 

216, 218 (4th Cir. 2008) (internal citations omitted). At the 

same time, we “lack the authority to review [the] court’s denial 

of a downward departure unless the court failed to understand 

its authority for doing so.” United States v. Hackley, 662 F.3d 

371, 386 (4th Cir. 2011).

If a prohibited firearms offense involves between three and

seven firearms, a district court should increase a defendant’s 

offense level by two. USSG § 2K2.1(b)(1)(A). The court should 

“count only those firearms that were unlawfully sought to be 
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obtained, unlawfully possessed, or unlawfully distributed.” 

USSG § 2K2.1 n.5. But if the defendant “possessed all . . . [of 

the] firearms solely for lawful sporting purposes or 

collection,” and did not unlawfully use the firearms, his

offense level should be decreased to level six. USSG 

§ 2K2.1(b)(2).

Our review of the record reflects that the district court 

properly applied § 2K2.1(b). Under § 2K2.1(b)’s plain language, 

the enhancement applies. Sandreth “unlawfully possessed” the 

heirloom rifle when he did so as a drug user, and not “all” of 

his firearms were “solely for lawful sporting purposes or 

collection.”

Similarly, we conclude that the district court did not 

abuse its discretion by refusing to grant Sandreth a variance. 

Sandreth received a presumptively reasonable, within-Guidelines 

sentence. Sandreth’s contention that his case falls outside of 

§ 2K2.1’s “heartland” simply cannot be squared with the plain 

language of the statute. 

Moreover, as to Sandreth’s request for a departure, the 

district court recognized its authority to depart, but merely 

elected not to do so. We thus find no reason for reversal in 

the district court’s application of § 2K2.1(b).

Sandreth next argues that his sentence violates the Eighth 

Amendment. Because Sandreth did not raise this argument before 
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the district court, we review the issue for plain error. See

United States v. Olano, 507 U.S. 725, 732 (1993). To establish

plain error, Sandreth must show that an error (1) occurred, (2)

was plain, and (3) affected his substantial rights. Id. We 

find no error, plain or otherwise.

The Eighth Amendment bars “cruel and unusual punishments.” 

U.S. Const. amend. VIII. “Punishment is deemed cruel and 

unusual not only when it is ‘inherently barbaric,’ but also when 

it is disproportionate to the crime for which it is imposed.” 

United States v. Cobler, 748 F.3d 570, 575 (4th Cir. 2014) 

(quoting Graham v. Fla., 560 U.S. 48, 59 (2010)). 

Sandreth contends the court violated the Eighth Amendment 

by allowing thirty-three months to pass between pronouncing and 

executing his sentence. The delay occurred while the court 

awaited the disposition of United States v. Carter, 669 F.3d 411 

(4th Cir. 2012), which potentially could have invalidated his 

conviction. Sandreth cites no authority for the proposition 

that mere delay in the execution of a sentence may violate the 

constitution. To the extent we have addressed this issue in the 

death penalty context, we have rejected it. See Turner v. Jabe, 

58 F.3d 924, 933 (4th Cir. 1995) (Luttig, J. concurring) 

(calling such a claim “a mockery of our system of justice”). 

Accordingly, we find no violation.
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We affirm the district court’s judgment. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED