UNITED STATES COURT OF APPEALS August 18, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-6175

MARTAVIOUS ARNEZ GROSS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:20-CR-00002-HE-2) _________________________________

David Autry, Oklahoma City, Oklahoma, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, and Wilson D. McGarry, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee. _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

CARSON, Circuit Judge. _________________________________

Defendant Martavious Gross escalated what could have been an everyday

episode on the highway into a drive-by shooting. The sentencing court varied

upward from the Guidelines range and sentenced Defendant to the statutory

maximum. He appeals, challenging the sentence’s procedural and substantive Appellate Case: 20-6175 Document: 010110726401 Date Filed: 08/18/2022 Page: 2

reasonableness. But the waiver in his plea agreement prohibits procedural appeals.

Defendant tries to take a detour around his appeal waiver by suggesting we should

evaluate how the court calculated the Guidelines range as part of our substantive

analysis. But a defendant cannot transform procedural arguments into a substantive

challenge to avoid an appeal waiver’s plain language. For this reason, exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm Defendant’s

sentence in part and dismiss his appeal in part.

I.

Defendant sat in the passenger seat of a car driving on an Oklahoma highway

when A.A., the eventual victim, cut the car off, allegedly almost hitting it. The car

sped up to pull beside A.A.’s car so that Defendant could yell at and flip off A.A.

But typical road-rage signaling did not satisfy Defendant, so the car caught up to

A.A. again, and this time Defendant fired a gun at A.A.’s vehicle. The car took off

afterward, and Defendant gave the gun to his brother to hide in the trunk. A.A. then

followed the car to collect its description and license-plate number, along with a

description of Defendant, to report to the police.

State troopers started searching for the reported vehicle. Once they found it,

the car led the troopers on a high-speed chase before stopping. The troopers detained

all three passengers—the driver, Defendant, and Defendant’s brother. They found

two stolen firearms in the trunk: an AR-15 containing a forty-five-round magazine

fully loaded with .223 caliber ammunition and a .40 caliber handgun containing a

2 Appellate Case: 20-6175 Document: 010110726401 Date Filed: 08/18/2022 Page: 3

fifteen-round magazine fully loaded with .40 caliber ammunition. Defendant

admitted to owning the handgun, shooting it at A.A.’s vehicle, and telling his brother

to hide the handgun in the trunk after the shooting.

Defendant pled guilty to possessing a firearm by a prohibited person.1 In his

plea agreement, Defendant waived the right to appeal his “sentence as imposed by the

Court, including . . . the manner in whi

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