UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4754

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RICHARD DUBLIN,

Defendant - Appellant.

No. 05-4766

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARION MAYS, a/k/a Mojo,

Defendant - Appellant.

No. 05-4782

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus
2

DARRELL TODD MAYS,

Defendant - Appellant.

Appeals from the United States District Court for the District of

South Carolina, at Aiken. Margaret B. Seymour, District Judge.

(CR-03-834; CR-03-726)

Submitted: July 5, 2006 Decided: July 13, 2006

Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Langdon D. Long, Assistant Federal Public Defender, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant

Richard Dublin; Mark W. Hardee, Columbia, South Carolina, for

Appellant Marion Mays; James P. Rogers, Columbia, South Carolina,

for Appellant Darrell Todd Mays. Reginald I. Lloyd, United States

Attorney, Mark C. Moore, Assistant United States Attorney, OFFICE

OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Richard Dublin, Marion Mays, and Darrell Mays appeal the life

sentences they received after pleading guilty to drug trafficking

and conspiracy charges that involved the killing of James Barrow,

a confidential informant working with law enforcement officers in

Aiken, South Carolina. Finding no reversible error, we affirm.

I.

After Dublin was arrested on drug charges, police became

suspicious that he might have information concerning the

disappearance of Barrow. Dublin agreed to plead guilty to

possession with intent to distribute 50 grams or more of crack, in

violation of 21 U.S.C. § 841(a)(1), and, as part of his plea

agreement, agreed to cooperate with the government by providing

truthful information about his drug activities and what he knew

about Barrow’s disappearance. Dublin understood that if he

breached the plea agreement by failing to be truthful, the

government could seek the maximum sentence of life in prison and

use against him all the information he provided.

Following his plea, Dublin gave a series of interviews about

the disappearance of Barrow, but, each time, his account changed.

A consistent theme, however, was that Marion Mays and Darrell Mays

were also involved. Although the government notified Dublin that

he was in breach of his plea agreement, prosecutors wanted to call
4

him as a witness at the trial of the Mays brothers, who were

charged with a variety of drug and firearms counts, including the

drug-related murder of Barrow. However, because the government

would make no promises to Dublin about the sentence it would

recommend, Dublin refused to testify.

Shortly after their trial commenced in January 2005, the Mays

brothers decided to plead guilty. The Mays brothers agreed to

provide truthful information to the government and to submit to

polygraph examinations. In turn, the government agreed not to use

against them any incriminating information they provided, unless

the information was already in the government’s possession or they

breached the plea agreement or committed perjury. The Mays

brothers also acknowledged that if they did not pass their

polygraphs examinations to the satisfaction of the government, the

government’s obligations would become void. The Mays brothers each

acknowledged that their sentences would ultimately be determined by

the district court.

The Mays brothers both admitted that they were not completely

truthful in their initial interviews concerning the disappearance

of Barrow. In fact, when agents picked up the brothers for their

first interviews, they noticed Marion with a letter that he later

admitted was intended to tell Darrell what to say. Additionally,

Marion’s polygraph examination showed inconclusive results

concerning the truthfulness of his account about Barrow’s body and
5

results indicating deception concerning an offer he allegedly made

to a co-defendant to kill a government informant and the amount of

drugs he gave that co-defendant.

Though the defendants’ stories changed from interview to

interview, grisly details of the Barrow murder finally emerged.

The defendants eventually each admitted their role in Barrow’s

murder. According to their accounts, they ambushed Barrow, bound

him with duct tape, placed him in the trunk of a car, and took him

to the woods where they each shot him. Darrell Mays disposed of

Barrow’s truck, and Marion Mays returned to the scene with a

chainsaw, where he dismembered Barrow’s body. Marion Mays then

removed Barrow’s remains, poured acid on them, and burned them. 

At sentencing, the district court found that Dublin and Marion

Mays had breached their plea agreements by providing untruthful

information. When the district court heard evidence concerning the

sentencing issues, the government called Darrell Mays to testify.

On the stand, Darrell Mays admitted his role in the murder, but, in

what the government contends was an effort to avoid inculpating his

brother, claimed to have memory problems. He stated that Dublin

was behind the murder and that he did not believe his brother was

involved. When confronted with his prior, inconsistent statements

about the murder, he claimed that he lied when giving them. He
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Darrell Mays had agreed both in his plea agreement and in a

later proffer agreement to provide truthful information.

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then admitted that he breached his agreement to provide truthful

information.1

As to each defendant, the district court considered evidence

of the drug transactions and the drug-related murder of Barrow.

The district court sentenced each defendant to life in prison, and

Marion Mays to thirty years each for three additional counts

against him. The defendants appeal their sentences.

II.

We review sentences for unreasonableness, though

“reasonableness is not measured simply by whether the sentence

falls within the statutory range, but by whether the sentence was

guided by the Sentencing Guidelines and by the provisions of §

3553(a).” United States v. Green, 436 F.3d 449, 456 (4th Cir.),

cert. den., 164 L. Ed. 2d 828 (2006). We review de novo purely

legal questions and we review findings of fact for clear error.

See id. “An error of law or fact can render a sentence

unreasonable.” Id.

The defendants claim that the district court should not have

sentenced them for murder when they had not been convicted by a

jury of murder. We note first that this argument mischaracterizes

what occurred in district court. Each defendant pleaded guilty to
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and was convicted of at least one drug-related charge that carried

a possible sentence of life in prison. See 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), 846. The defendants, therefore, were not “sentenced

for murder,” but were sentenced for violating our nation’s drug

laws. Their role in the drug-related killing of a government

informant simply provided the district court greater discretion to

sentence them to the maximum punishment authorized by law for these

drug-related charges, namely, life in prison.

Turning to the reasonableness of the sentences, we note that,

after the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), a sentencing court is no longer bound by the range

prescribed by the sentencing guidelines. See United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in determining

a sentence post-Booker, sentencing courts are still required to

calculate and consider the applicable guideline range as well as

the factors set forth in 18 U.S.C. § 3553(a), making all factual

findings appropriate for that determination. See id. If the

sentence imposed is within the properly calculated guideline range,

it is presumptively reasonable. See Green, 436 F.3d at 456.

Under our now advisory sentencing guidelines, where a

defendant is convicted of violating 21 U.S.C. §§ 841(a)(1) or 846

and a “victim was killed under circumstances that would constitute

murder under 18 U.S.C. § 1111 had such killing taken place within

the territorial or maritime jurisdiction of the United States,” the
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sentencing court should look to the base offense level used for

first degree murder, which is 43. See U.S. Sentencing Guidelines

Manual §§ 2A1.1, 2D1.1(d)(1) (2004). Regardless of the defendant’s

criminal history category, the advisory sentencing guideline range

for a base offense level of 43 is life in prison. See id. at Ch.

5, Pt. A. 

Here, the district court had adequate evidence before it,

including the admissions of each defendant, to conclude that the

defendants were directly involved in the drug-related killing of

Barrow, a confidential government informant. The district court

was free to use the defendants’ admissions of their roles in

Barrow’s killing, as there was adequate evidence to show that each

defendant breached his agreement to provide truthful information.

For example, there was sufficient evidence to conclude that Dublin

provided a series of differing stories about his role in the murder

and was notified by the government that he was in breach of his

agreement; that Marion Mays was not forthcoming with all of the

details concerning his role in the murder and failed a polygraph

test; and that Darrell Mays was not completely truthful in his

first interview and lied to investigators about his brother’s role

in the murder. As a result, the district court was permitted to

use the defendants’ admissions, weigh all the evidence, and apply
2For these reasons, we reject Darrell Mays’ separate argument

that the district court erred in concluding that he breached his

plea agreement.

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the murder cross reference to arrive at an advisory guideline range

of life in prison for each defendant.2

 

Darrell Mays further argues that the district court failed to

provide an adequate statement of reasons for his sentence under 18

U.S.C. § 3553(a). We note initially that, as described above,

Darrell Mays’ sentence fell within the advisory guideline range and

was, therefore, presumed to be reasonable. See Green, 436 F.3d at

456. Furthermore, the district court was not required to discuss

every § 3553(a) factor on the record. See United States v. Eura,

440 F.3d 625, 632 (4th Cir. 2006). Moreover, when the district

court conducted its proportionality analysis under United States v.

Kratsas, 45 F.3d 63, 66 (4th Cir. 1995), it explained that Darrell

Mays’ offense was “extremely grave,” that he was involved in a

conspiracy with one of South Carolina’s major cocaine and crack

suppliers, and that he played a role in the drug-related murder of

a confidential informant. The district court concluded that life

in prison was not disproportionate in comparison with other

sentences under the guidelines, and that state statutes in our

circuit disclose the existence of similarly severe sentencing for

narcotics violations of this magnitude. J.A. 587. These findings

under the Kratsas proportionality analysis touch on many of the
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factors in § 3553(a) and support the reasonableness of Darrell

Mays’ sentence. 

III.

For the foregoing reasons, we affirm the defendants’

sentences. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED