United States of America v. Johnnie B. Gray

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4541
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHNNIE B. GRAY,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:10-cr-01029-JFA-1)
Submitted: September 9, 2011 Decided: September 16, 2011
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Dean A. Eichelberger, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Johnnie B. Gray pleaded guilty without the benefit of
a plea agreement to copyright infringement, in violation of
17 U.S.C. § 506(a)(1) (2008) and 18 U.S.C. § 2319(b)(1) (2008).
He was sentenced to twenty-four months’ imprisonment. The sole
issue presented on appeal is whether, for purposes of a two-
level enhancement pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2B5.3(b)(3)(A) (2010), Gray “manufactured” infringing
items. We affirm.
In assessing a sentencing court’s application of the
Guidelines, we review its legal conclusions de novo and its
factual findings for clear error. United States v. Mehta,
594 F.3d 277, 281 (4th Cir.), cert. denied, 131 S. Ct. 279
(2010). A district court may apply a sentencing enhancement if
it is supported by a preponderance of the evidence. United
States v. Blauvelt, 638 F.3d 281, 293 (4th Cir. 2011), petition
for cert. filed, 79 U.S.L.W. 3712 (U.S. June 6, 2011) (No. 10-
1473).
The Guidelines allow for a two-level increase of a
defendant’s offense level when the “offense involved the
manufacture, importation, or uploading of infringing items.”
USSG § 2B5.3(b)(3)(A). Here, Gray not only bought and resold
infringing materials, but he personally created infringing
materials using equipment found in his home.

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We therefore conclude that the district court’s
application of the enhancement was not clearly erroneous.
Accordingly, we affirm the judgment of the district court. 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

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