UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-7913

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

OSHAY TERRELL JONES,

 Defendant - Appellant.

No. 20-4632

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

OSHAY TERRELL JONES,

 Defendant - Appellant.

Appeals from the United States District Court for the Western District of Virginia, at 

Roanoke. Michael F. Urbanski, Chief District Judge. (7:13-cr-00038-MFU-1; 7:17-cv81235-MFU-RSB)

Submitted: December 13, 2022 Decided: January 19, 2023

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Before KING, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Juval O. Scott, Federal Public Defender, Christine Madeleine Lee, Assistant 

Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, 

Virginia, for Appellant. Christopher R. Kavanaugh, United States Attorney, Jonathan 

Jones, Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In these consolidated appeals, Oshay Terrell Jones appeals the district court’s order

granting in part and denying in part his Fed. R. Civ. P. 60(b) motion, which sought relief 

from the district court’s prior order dismissing his 28 U.S.C. § 2255 motion. Jones also 

appeals the new sentence imposed following the district court’s reopening of his § 2255 

proceedings under Rule 60(b) and award of a resentencing hearing based on a meritorious 

§ 2255 claim. For the reasons stated below, we affirm both the district court’s order 

resolving Jones’ Rule 60(b) motion and the amended criminal judgment.

Jones first argues that the district court erred in denying the aspect of his Rule 60(b)

motion that sought relief under Rule 60(b)(3).1

 Jones sought relief under that provision 

from the district court’s earlier dismissal of his § 2255 claim that bad advice from his trial 

counsel caused him to reject a favorable plea offer. The district court ruled that Jones’ 

request for relief under Rule 60(b)(3) was untimely because Jones filed his Rule 60(b) 

motion more than one year after the court entered the dismissal order. See Fed. R. Civ. P. 

60(c)(1) (providing that Rule 60(b)(3) motion must be filed “no more than a year after the 

entry of the judgment or order or the date of the proceeding”). The district court also ruled 

that Jones was not entitled to equitable tolling of the one-year period.

We are satisfied that the district court did not abuse its discretion in denying Jones’ 

request for relief under Rule 60(b)(3). See Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 

1 Jones does not require a certificate of appealability to appeal the denial of the Rule 

60(b)(3) aspect of his Rule 60(b) motion as untimely filed. United States v. Williams, __ 

F.4th __, __, No. 19-7354, 2023 WL 18008, at *2 n.3 (4th Cir. Jan. 3, 2023).

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2011) (en banc) (stating standard of review). As the district court recognized, Jones’ 

request was untimely under Rule 60(c)(1). And the one-year period under Rule 60(c)(1) is 

not subject to equitable tolling. Williams, __ F.4th at __, 2023 WL 18008, at *5-6. 

Jones next challenges his new sentence imposed upon resentencing. The district 

court awarded Jones a resentencing hearing after reopening Jones’ § 2255 proceedings 

under Rule 60(b)(6) and granting relief on Jones’ claim that his trial counsel had rendered

ineffective assistance by failing to lodge a particular objection to the drug quantity 

attributed to Jones at the original sentencing hearing. At the resentencing hearing, the 

district court overruled Jones’ objection to a two-level enhancement under U.S. Sentencing 

Guidelines Manual § 2D1.1(b)(1) (2018), for possession of a firearm. The district court 

calculated an advisory Sentencing Guidelines range of 210 to 262 months’ imprisonment 

and varied downward to impose a sentence of 168 months’ imprisonment—a 112-month 

reduction from Jones’ original sentence of imprisonment. 

Rather than review the merits of Jones’ challenge to the firearm enhancement, “we 

may proceed directly to an assumed error harmlessness inquiry.” United States v. 

Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal quotation marks omitted). “To 

apply this assumed error harmlessness inquiry we require (1) knowledge that the district 

court would have reached the same result even if it had decided the [G]uidelines issue the 

other way and (2) a determination that the sentence would be [substantively] reasonable 

even if the [G]uidelines issue had been decided in the defendant’s favor.” United States v. 

McDonald, 850 F.3d 640, 643 (4th Cir. 2017) (internal quotation marks omitted). An error 

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will be considered harmless only when we are “certain” that these inquiries are met. United 

States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012).

As to the first inquiry, the district court repeatedly expressed that a 168-month 

sentence was sufficient but not greater than necessary under the 18 U.S.C. § 3553(a) 

factors. While the district court did not state that it would have imposed the same sentence 

even if the firearm enhancement were inapplicable, it was not required to do so.2

 United 

States v. Savillon-Matute, 636 F.3d 119, 124 (4th Cir. 2011) (“Although the district court 

did not specifically state that it would give the same sentence absent the 8-level 

enhancement, there is no requirement that it do so . . . .”). Given the district court’s

unambiguous assertions that a 168-month sentence was the proper sentence, we are 

confident that the court would have imposed that same sentence even if it had sustained 

Jones’ objection to the firearm enhancement.

As to the second inquiry, we must assess whether Jones’ sentence would be 

substantively reasonable even if the district court had sustained Jones’ objection to the 

firearm enhancement. Had the district court done so, Jones’ Guidelines range would have 

been 168 to 210 months’ imprisonment rather than 210 to 262 months’ imprisonment.

2 The district court stated when discussing the drug quantity attributable to Jones, 

however, that it would have imposed the same sentence even if the base offense level were

28 instead of 30, which would have yielded the same Guidelines range that would have 

resulted had the court sustained Jones’ objection to the firearm enhancement. The district 

court’s statement provides us additional assurance that it would have imposed the same 

168-month sentence even if the firearm enhancement were inapplicable.

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We are satisfied that the 168-month sentence imposed by the district court is 

substantively reasonable even under an assumed Guidelines range of 168 to 210 months. 

The district court thoroughly explained why a 168-month sentence was necessary using the

§ 3553(a) factors. See United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 

2010) (explaining that substantive reasonableness review requires an examination of “the 

totality of the circumstances to see whether the sentencing court abused its discretion in 

concluding that the sentence it chose satisfied the standards set forth in § 3553(a)”). As to 

Jones’ history and characteristics, the district court observed that Jones had a difficult 

upbringing, that he was relatively young at the time of trial, and that he had received bad 

advice from his trial counsel that caused him to proceed to trial rather than seek a plea 

agreement.3

 As for the seriousness of Jones’ conduct, the district court emphasized that 

Jones was a leader of a drug-trafficking conspiracy and that, while the conspiracy was 

ongoing, Jones had driven a car from which a coconspirator shot at an occupied vehicle. 

The district court also explained that a sentence of 168 months would promote respect for 

the law, provide just punishment for the offense, protect the public, and afford adequate 

deterrence. Finally, the district court determined that a sentence below 168 months would 

result in an unwarranted sentencing disparity between Jones and his conspirators and would 

be insufficient under § 3553(a).

3 The district court observed that a 168-month sentence was roughly equivalent to a 

proposed sentence in a plea offer that Jones had rejected before trial. 

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Because the district court would have imposed the same 168-month sentence even 

if the firearm enhancement were inapplicable, and because Jones’ 168-month sentence 

would be substantively reasonable even if the court had sustained Jones’ objection to that 

enhancement, we are satisfied that any Guidelines calculation error in these proceedings 

was harmless. See McDonald, 850 F.3d at 645. 

Accordingly, we affirm both the district court’s order granting in part and denying 

in part Jones’ Rule 60(b) motion and the amended criminal judgment. We also deny Jones’ 

motions for leave to file a pro se supplemental brief and for the appointment of new 

counsel. See United States v. Cohen, 888 F.3d 667, 682 (4th Cir. 2018) (“[A]n appellant 

who is represented by counsel has no right to file pro se briefs or raise additional 

substantive issues in an appeal.”). 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

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