United States of America v. Manley Grey

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2438
UNITED STATES OF AMERICA
v.
MANLEY GREY,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 06-cr-528-2
(Honorable Stanley R. Chesler)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 11, 2010
Before: SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges.
(Filed: March 10, 2010)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Manley Grey a/k/a John Low pleaded guilty to conspiracy to commit
Hobbs Act robbery (18 U.S.C. § 1951(a)) and use of a firearm in furtherance of a crime of

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violence (18 U.S.C. § 924(c)). Grey was sentenced to 191 months imprisonment. Grey
challenges his sentence. We will affirm.
I.
Grey conspired along with three others to rob an armored car. Enlisting Evrol
Dean, an employee of the armored car company, the four planned to sneak Grey and
another co-conspirator into the armored car through an unlocked door. Grey and the
cohort would then “instruct” Dean to drive to a secluded location. The fourth member of
the conspiracy, Marvin Tillman, agreed to follow the armored car and transfer the money
to his getaway vehicle. According to Grey, the amount they planned to steal was
approximately $150,000. However, the targeted armored car would be carrying over $1
million on the day of the robbery.
The four men committed the robbery on February 14, 2006. Dean, as planned, left
one of the doors to the armored vehicle unlocked as he entered a bank in Livingston, New
Jersey with his unwitting partner. Grey and a fellow co-conspirator, armed with
handguns, entered the truck and waited while the vehicle was stopped to pick up a
deposit. Once Dean and his partner returned, Grey pointed his gun at Dean’s partner and
instructed him not to move. When Dean’s partner attempted to foil the robbery, Grey shot
him twice at point-blank range. The partner leaped from the armored car and called for
help. His life was saved only by his bullet-proof vest.

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Under U.S.S.G. § 2B3.1(b)(7)(E), a four-level enhancement is applied for a loss of1
more than $800,000 but less than $1,500,000.
Applying the four-level enhancement provided in U.S.S.G. § 2B3.1(b)(7)(E), the
Court arrived at a total offense level of 25, which, when coupled with Grey’s criminal
history of I, yielded an advisory Guidelines range of 57-71 months on the conspiracy
count, to be followed by a mandatory consecutive sentence of 120 months on the § 924(c)
conviction. As noted, the court sentenced Grey to 191 months imprisonment; 71 months
on Count 1 followed by a mandatory consecutive 120-month sentence on Count 4.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have2
jurisdiction over Grey’s appeal under 18 U.S.C. § 3742(a). We review a district court’s
(continued...)
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Grey and his co-conspirators, now in sole possession of the armored car, drove
approximately 200 feet. They then stopped, exited the armored car, and emptied sacks of
money (approximately $90,000) into Tillman’s getaway vehicle. Police apprehended
Grey and his co-conspirators after a high speed chase.
Grey was charged in three counts of a four-count indictment and pleaded guilty to
two charges: conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. §
1951(a) and use of a firearm in furtherance of a crime of violence in violation of 18
U.S.C. § 924(c). At sentencing, the District Court found Grey responsible for over $1
million in loss, stating that “for a period of time [the defendants] were in sole control of
an armored car with $ 1.1 million.” Consequently, the District Court imposed a four-level
sentencing enhancement under United States Sentencing Guideline § 2B3.1(b)(7)(E)
(2008). Grey challenges his sentence on two grounds, arguing the District Court erred in1
its loss calculation and failed to give adequate consideration to the 18 U.S.C. § 3553(a)
factors.2

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(...continued)2
determination of loss for clear error. United States v. Brennan, 326 F.3d 176, 194 (3d
Cir. 2003). We review a district court’s sentence for reasonableness. United States v.
Booker, 543 U.S. 220, 261 (2005).
Grey fails to note that “intended loss” also “includes intended pecuniary harm that3
would have been impossible or unlikely to occur . . . .” See U.S.S.G. § 2B1.1. cmt.
n.3(A)(ii)(II).
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II.
Grey contends the court erred by calculating loss to be $1.165 million because the
conspirators did not intend to steal more than $150,000 and in fact only “stole”
approximately $90,000. Grey argues that loss, as outlined in U.S.S.G. § 2B1.1 cmt.
n.3(A)(ii), must be calculated only on the pecuniary harm that was intended to result from
the offense. The District Court here correctly calculated loss in accordance with §3
2B3.1, which addresses robbery, not § 2B1.1 cmt. n.3, which addresses theft,
embezzlement, receipt of stolen property, property destruction and offenses involving
fraud or deceit. See United States v. Allen, 516 F.3d 364, 378-379 (6th Cir. 2008)
(finding the Commission’s amendment to § 2B1.1, instructing courts to use “the greater
of actual loss or intended loss,” did not affect the definition of loss under § 2B3.1).
Section 2B3.1 cmt. n.3 defines “loss” for purposes of robbery as “the value of the
property taken, damaged or destroyed.” It is undisputed that the total amount of cash in
the armored car was $1.165 million. When Grey and his co-conspirators commandeered
the armored car, they took dominion and control over the total amount of $1.165 million.
By exercising such dominion and control, Grey and his co-conspirators had “taken” all

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Relying on United States v. Collado, 975 F.2d 985 (3d Cir. 1992), Grey also argues he4
should not be held responsible for the amount of money stolen by his co-conspirators
because he only agreed to steal between $100,000 and $150,000. However, in Collado
we addressed an issue of accomplice attribution in which the defendant in a conspiracy
had not performed the criminal acts charged. That argument is inapplicable here. Grey
acted with his co-conspirators in stealing the armored car and the cash inside. The
District Court did not rely upon the actions of others, exclusive of Grey’s own actions, to
calculate Grey’s base offense level. Thus, because Grey actively participated in the
robbery, Collado’s accomplice attribution argument does not apply.
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the money in the armored car as that term is set forth under § 2B3.1 cmt. n.3. Grey and
his co-conspirators moved the cash at will when they drove away in the armored car.
They had seized the entire amount. Accordingly, the loss calculation must include the
entire amount. Thus, the District Court’s loss calculation correctly reflects the amount
which Grey had “taken” as $1.165 million.4
In United States v. Allen, the Court of Appeals for the Sixth Circuit held “a robber
‘takes’ an object, for purposes of § 2B3.1, when the robber exercises dominion and
control over that object, such that the robber has completed the acts necessary to seize
that object.” 516 F.3d at 380. In Allen, all co-conspirators pleaded guilty to stealing rare,
expensive books from a university library. Id. at 366. In the course of the theft,
defendants realized they were ill-prepared to remove such a large number of books, so
they decided to leave those they could not carry. Id. at 369. The defendants were caught
attempting to escape via a stairwell by a librarian. Id. Frightened at being discovered,
they dropped several of the stolen books before fleeing the library. Id. The district court

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The Parker court interpreted the same language contained in what is now § 2B3.15
cmt. n.3 prior to the Commission’s amendments to § 2B1.1. At the time Parker was
decided, § 2B1.1 defined “loss” as “the value of the property taken, damaged or
destroyed.” U.S.S.G. § 2B1.1. cmt. n.2 (1990).
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declined to include in the loss calculation the value of the books the defendants could not
carry or dropped.
The government appealed the sentence and the Sixth Circuit concluded the district
court’s loss calculation should have included the books left behind and dropped by the
defendants. Id. at 381. The court found that the defendants had taken all the books
because “they moved them at will; they could have damaged them, destroyed them,
hidden them, played with them or—as they did—prepared them to be carried away.” Id.
Similarly, the Second Circuit has held loss calculation includes property over
which the defendant exercised only temporary dominion and control. United States v.
Parker, 903 F.2d 91, 105 (2d Cir. 1990). The defendants in Parker conspired to rob a5
deposit vehicle belonging to a check cashing firm. Id. at 95–96. After stealing the
vehicle, the defendants transferred a substantial portion, but not all, of the money into a
getaway car and fled. Id. at 96. The court found the defendants responsible for the entire
amount of money in the stolen deposit vehicle because they had exercised dominion and
control over the entire lot of cash. Id. at 105. Although a portion of the money was not
transferred into the getaway car that “[did] not mean that they had not taken it.” Id.

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Accordingly, the District Court correctly calculated loss under the Sentencing
Guidelines.
III.
Grey also argues the District Court’s sentence is unreasonable because it failed to
adequately consider the 18 U.S.C. § 3553(a) factors in sentencing him at the high end of
the advisory guideline range.
We evaluate a sentence by reviewing the court’s record considering the relevant
factors in § 3553(a). United States v. King, 454 F.3d 187, 194 (3d Cir. 2006). The
sentencing judge need not explicitly comment on every factor if “the record makes clear
the court took the factors into account in sentencing.” United States v. Howe, 543 F.3d
128, 137 (3d Cir. 2008). We are satisfied that the District Court adequately considered
and weighed the § 3553(a) factors.
The District Court took care to consider and explain its sentence to Grey. Grey
argued he was less culpable than his co-defendants, that he had no intent to shoot the
security guard, and that the poor conditions at the jail in which Grey was held before trial
warranted a reduction in sentence. Despite Grey’s mitigating arguments, the District

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As the Government properly pointed out, Grey was “the most culpable of all the6
defendants involved in this case,” as he “actually shot an innocent man” after pointing a
loaded gun at him. The Court stressed the seriousness of this conduct, noting that a mere
fortuity was all that prevented this prosecution from being one for “murder.”
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Court reasonably cited the seriousness of the offense under 18 U.S.C. §§ 3553(a)(1) and6
(2)(A) and the need to deter Grey and others under § 3553(a)(2)(B).
IV.
For the foregoing reasons, we will affirm the judgment of conviction and
sentence.

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