Background
Kewuan Tyrell Gregg pleaded guilty under a written plea agreement to possession with intent to distribute a mixture or substance containing fentanyl. The district court sentenced him to 36 months in prison, an upward departure from his advisory Sentencing Guidelines range.
Gregg committed the fentanyl offense while on supervised release for an earlier federal felon-in-possession conviction. The district court revoked his supervised release and imposed an additional 24-month sentence, within the applicable advisory policy-statement range, to run consecutively to the fentanyl sentence. Gregg appealed both sentences.
The Court’s Holding
The Fourth Circuit dismissed Gregg’s challenge to the fentanyl sentence because it fell within a valid appeal waiver in his plea agreement. Gregg did not contest the waiver’s validity or scope, but argued that enforcing it would cause a miscarriage of justice because the district court allegedly engaged in impermissible double counting when imposing the upward departure. The court held that an asserted Guidelines error affecting a sentence does not fall within the narrow miscarriage-of-justice exception.
The court affirmed the consecutive 24-month revocation sentence. It concluded that the district court adequately considered Gregg’s request for a concurrent or partially concurrent sentence and explained its rejection of that request. The district court characterized Gregg’s supervised-release violation as particularly egregious and found that concurrency would be inconsistent with Chapter 7 policy and the need to punish the violation.
Key Takeaways
- A valid appeal waiver generally bars a claim that the district court improperly applied the Sentencing Guidelines.
- The miscarriage-of-justice exception does not ordinarily permit review merely because an alleged legal error may have increased the defendant’s sentence.
- A revocation court adequately explains a consecutive sentence when it addresses the defendant’s nonfrivolous request for concurrency and gives record-based reasons for rejecting it.
Why It Matters
The unpublished decision reinforces the Fourth Circuit’s narrow treatment of the miscarriage-of-justice exception to appeal waivers. Defendants generally cannot avoid a valid waiver by recasting an alleged Guidelines error as a fundamentally unjust result.
It also illustrates the explanation required when a district court orders a revocation sentence to run consecutively: the court must acknowledge the defense’s sentencing request and explain why the nature of the supervised-release violation warrants a different result.