United States v. Shedrick , 304 F. App'x 55 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-19-2008
USA v. Shedrick
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4448
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4448
UNITED STATES OF AMERICA,
Appellee
v.
JAMES SHEDRICK
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. CR 02-532-1)
Honorable Legrome D. Davis, District Judge
Submitted under Third Circuit LAR 34.1(a)
December 3, 2008
BEFORE: AMBRO and GREENBERG, Circuit Judges,
and RODRIGUEZ,* District Judge
(Filed: December 19, 2008)
OPINION
*
The Honorable Joseph H. Rodriguez, Judge of the United States District Court for the
District of New Jersey, sitting by designation.
RODRIGUEZ, District Judge:
James Shedrick appeals from his sentence imposed after a plea of guilty to one
count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §
922(g)(1). He was sentenced to 96 months imprisonment, a term of supervised release of
three years, a fine of $7,500.00, and a special assessment of $100.00. Shedrick contends
that the District Court abused its discretion by granting an upward departure of eight
offense levels, and that it imposed an unreasonable sentence. We disagree and will affirm
the sentence imposed.
I. JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 1291, as this matter comes
before the Court due to a timely appeal from the order of judgment in a criminal case
entered on November 13, 2007. Additionally, this Court has jurisdiction pursuant to 18
U.S.C. § 3742 to review the sentence imposed.
II. FACTS AND PROCEDURAL HISTORY
The underlying conduct that gave rise to the initial indictment occurred on July 11,
2002. On that date, police officers arrived at 64th Street and Greenway Avenue in
Philadelphia, PA, in response to 911 emergency calls reporting a man with a gun. Shortly
thereafter, Officer Pembrook spotted Appellant Shedrick standing in the middle of the
street with a large silver revolver. He radioed for backup, and was quickly joined by
Officers Mason, Rutter, and Gallen-Ruiz. All officers then instructed Appellant to drop
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his weapon. Appellant chose not cooperate; he unsuccessfully attempted to fire his
revolver into the air three times. Appellant then opened the cylinder of the revolver, and
six empty shell casings dropped to the ground. While Appellant checked his weapon, the
officers tackled him and placed him under arrest.
Before moving on, it is important to note that Appellant discharged his firearm
prior to the officers’ arrival. Two shots hit a moving van with two passengers inside.
The first shot hit the top of the hood, and the second hit the middle of the windshield– just
missing driver Lay Nguyen and his passenger-employee Patricia Edwards. (App. 45.)
Neither of the passengers sustained any injuries.
This case originally came before the Eastern District of Pennsylvania, when on
August 27, 2002, the grand jury returned an indictment for Appellant James Shedrick.
Appellant was charged with one count of possession of a firearm by a felon pursuant to
18 U.S.C. § 922(g)(1). On November 8, 2002, Appellant pleaded guilty to that charge.
He stipulated to the following facts: (1) possession of a Smith & Wesson .357 magnum
caliber revolver; (2) previous conviction of a crime punishable by imprisonment for more
than one year; and (3) the relevant firearm affected interstate commerce as it was
manufactured outside Pennsylvania. (Suppl. App. 3.) Appellant further stipulated that
“the Court may make factual and legal determinations that differ from these stipulations
and that may result in an increase or decrease in the Sentencing Guidelines range and the
sentence that may be imposed.” (Id.)
3
The plea acknowledged that Appellant’s maximum statutory sentence under §
922(g)(1) could be as much as ten years’ imprisonment, including three years’ supervised
release, a $250,000.00 fine, and a $100.00 special assessment. (Id. at 2.) Notably, the
parties agreed that each was “free to argue the applicability of any other provision of the
Sentencing Guidelines, including offense conduct, offense characteristics, criminal
history, adjustments and departures...” (Id. at 3.) Finally, relevant portions of the plea
agreement also included the following waiver provision:
10. In exchange for the undertakings made by the government in entering
this plea agreement, the defendant voluntarily and expressly waives all
rights to appeal or collaterally attack the defendant’s conviction,
sentence, or any other matter relating to this prosecution, whether such
a right to appeal or collateral attack arises under 18 U.S.C. 3742, 28
U.S.C. 1291, 28 U.S.C. 2255, or any other provision of law.
(A) Notwithstanding the waiver provision above, if the government
appeals from the sentence, then the defendant may file a direct
appeal of his sentence.
(B) If the government does not appeal, then notwithstanding the
waiver provision set forth in paragraph 10 above, the defendant
may file a direct appeal but may raise only claims that:
(i) if the sentence exceeded the statutory maximum; or
(ii) if the judge erroneously departed upward from the
otherwise applicable sentencing guideline range.
(Suppl. App. 4.) During an extensive plea colloquy with Judge Davis, Appellant confirmed
in open court that he fully understood the terms of the plea agreement. (See App. 21-35.)
Two weeks prior to the sentencing hearing, the Government filed a sentencing
memorandum containing two recommendations: (1) Appellant should be subject to a
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four-level enhancement for possessing a firearm in connection with a felony offense
(drug dealing); and (2) the District Court should depart upward eight levels from the
Guidelines range because Appellant fired the weapon during the commission of his
offense (shooting at the passenger van). Consistent with these recommendations, the
applicable Guidelines’ range became 87 to 108 months. (Suppl. App. 18.) Appellant
objected to these recommendations, instead contending that he was subject to a 46 to 57
month range.1 (App. 72-73.)
The sentencing hearing was thereafter held on February 21, 2003. The District
Court heard testimony from Lay Nguyen (the driver of the van), Aki Brickhouse (the man
responsible for transferring possession of the gun to Appellant’s brother), Detective
Missimer (the detective who interviewed Appellant’s brother– Tarik Robinson), Rachel
Jacobs (Appellant’s mother), and Appellant himself, who made a statement from
counsel’s table.
The Court ultimately accepted as credible the testimony from Brickhouse that
Appellant carried the weapon in connection with “hustling”, that is, dealing cocaine on
the streets. (App. 56, 91.) The Court also accepted as credible the testimony of Nguyen,
who testified that Appellant was the person who shot twice at her van. (App. 51, 93.) In
1
The P.S.R. calculated Appellant’s base offense level at 20. Due to Appellant’s
prior felony conviction for a controlled substance offense, the calculation was subject to a
four-level enhancement under U.S.S.G. § 2K2.1(b)(5). The resultant 24 was then subject
to a three-level downward adjustment for acceptance of responsibility under U.S.S.G. §
3E1.1. These adjustments finally resulted in a combined point total of 21. (App. 15-16.)
5
fact, Judge Davis recalled Nguyen to directly answer questions so as to verify that
Appellant was properly identified.2 As Judge Davis told Nguyen, “I’m asking you these
questions because it’s very important to me as a judge that I know what the facts are and
that I do the right thing.” (App. 87.)
The District Court ultimately applied the four-level enhancement associated with
carrying the weapon in connection with dealing drugs and the eight-level upward
departure for shooting at the passenger van. (Suppl. App. 18.) The Court then adjusted
downward three levels for Appellant’s acceptance of responsibility, which brought the
total to 29. (App. 94.) With the appropriate sentencing range at 87 to 108 months, the
Court imposed a sentence of 96 months, including three years’ supervised release, a
$7,500 fine, and the mandatory $100 special assessment. (Id. at 95-96.)
Shedrick received court-appointed counsel for purposes of appeal. Six months
after the sentencing, counsel filed a motion for enlargement of time to enter a notice of
appeal nunc pro tunc. (Suppl. App. p. 18.) That motion was denied as untimely on
August 27, 2003, and we dismissed the appeal as untimely on November 25, 2003. (Id. at
2
There was one discrepancy in Nguyen’s testimony. Appellant was arrested
wearing a black t-shirt. According to Nguyen, the shooter wore a white t-shirt. When
Nguyen was confronted with that discrepancy, he answered that he was focused on the
gun more than the particular clothes of the defendant. Significantly, Nguyen testified that
the gun was chrome, and the Smith & Wesson seized from Appellant was indeed chrome.
Additionally, because the police station Nguyen went to after the shooting was only two
blocks away, Nguyen returned to the scene quickly and witnessed Appellant being tackled
in the “same place” where the shooting had occurred. (App. 88.)
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19.) Appellant thereafter (through counsel) filed a § 2255 habeas petition for ineffective
assistance of counsel, which again was denied by the District Court. A pro se petition for
a certificate of appealability was then filed before this Court, which was granted for two
issues: “whether counsel was ineffective for failing to advise [Appellant] of a possible
upward departure at sentencing; and whether counsel was ineffective for filing an
untimely appeal.” (Id. at 19.)
In a precedential opinion, see, generally, United States v. Shedrick, 493 F.3d 292
(3d Cir. 2006), we answered in the negative as to the first issue, but found in favor of
Appellant as to the second. We also stated that the only issue preserved for appeal was
whether the eight-level upward departure was erroneous. Id. at 303. Because that issue
was extensively briefed, this Court decided it on the merits, finding that the District Court
did not abuse its discretion in imposing the sentence. (Suppl. App. 31-33.) Appellant
then filed a motion for rehearing, contending that it was improper for this Court to rule on
that issue. We agreed, noting that the usual rule of thumb on a § 2255 case is to remand
to the District Court so as to allow Appellant to be in the same position as if he had
effective counsel. See Shedrick, supra, at 303. Thus, we vacated that portion of the
opinion and remanded
for re-entry of the initial sentence so that there can be a timely appeal... This
... will give [Appellant] the opportunity properly to raise the issue that he had
previously expressed a desire for this Court to review and which he explicitly
preserved in his plea agreement and colloquy: the propriety of his upward
departure.
7
Id.
On remand, the District Court followed our directive, imposing the same sentence
it deemed appropriate at the February 2003 sentencing hearing. This sentence was re-
imposed notwithstanding Appellant’s contention that the District Court should conduct a
de novo sentencing hearing consistent with the demands of United States v. Booker, 543
U.S. 220 (2005), decided two years after Appellant’s initial sentencing, and
notwithstanding an extensive colloquy between Judge Davis and Appellant regarding
Appellant’s certificates of merit attained in prison. Judge Davis explained that he was
bound by our directive, and that, in any event, he would impose the same sentence even if
Booker governed the case. (App. 121-22.)
III. STANDARD OF REVIEW
The standard for reviewing whether an upward departure was permissibly granted
under the sentencing guidelines is plenary. See United States v. Himler, 355 F.3d 735,
741 (3d Cir. 2004). This Court then reviews the reasonableness of the departure for an
abuse of discretion. See United States v. Yeaman, 194 F.3d 442, 456 (3d Cir. 1999).
Factual determinations regarding sentencing are reviewed for clear error. United States v.
Beckett, 208 F.3d 140, 148 (3d Cir. 2000). Finally, the standard for reviewing whether an
appellate waiver is enforceable is de novo. See United States v. Jackson, 523 F.3d 234,
237 (3d Cir. 2008).
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IV. DISCUSSION
A. The Upward Departure
Appellant first contends that the evidence was insufficient to warrant an upward
departure in this case. In Appellant’s words, “[t]he evidence presented at sentencing was
far from overwhelming.” (Appellant Br., p. 13.) (emphasis added). Pointedly, this Circuit
has never required such a high burden of proof at sentencing. Indeed, we have held that a
district court applies the preponderance of the evidence standard when determining facts
relevant to sentencing. See United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en
banc); and United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). Those factual
determinations are then reviewed using the deferential clear error standard. Rita v.
United States, 551 U.S. ---, 127 S. Ct. 2456, 2471 (2007).
Here, the District Court did not commit clear error when it concluded that
Appellant fired the gun at the passenger van. While there may have been a discrepancy
with respect to the shirt Appellant wore at the relevant time, that discrepancy was
resolved by the Court after recalling Nguyen to testify. (App. 93-94.) The following
colloquy between the Court and Nguyen took place:
Court: [Y]ou took them back to where you were being shot at?
Witness: Yes.
Court: Okay. And that’s when you saw the man that they tackled, right?
Witness: Yes.
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Court: Okay. So the man that they tackled, where was he standing in
relation to where the man who shot at you was standing?
Witness: Same place.
Court: Same place?
Witness: Yes.
When this colloquy is juxtaposed with the facts that: (1) the police station was only a two
blocks from the scene of the shooting, (2) Appellant’s gun had six empty shell casings
when he was arrested, and (3) the Court found Nguyen’s testimony credible, it is evident
that the Court’s finding that Appellant fired the gun was not clearly erroneous.
Appellant further contends that “[a] jury finding was necessary to determine”
whether Appellant shot at the van. The question of whether a jury finding was necessary
to determine the factual basis for Appellant’s sentencing was answered by the Supreme
Court in United States v. Booker, 543 U.S. 220 (2005). In that case, the Supreme Court
held in part that the Sixth Amendment right to trial by jury is not implicated during
sentencing unless the sentence exceeds the statutory maximum. Id. at 259. Whereas here,
the statutory maximum for Appellant’s offense was ten years and the range recommended
was 87 to 108 months, Appellant was not entitled to a jury finding at sentencing.
Appellant’s next contention is that, even if it is true that he fired the gun at the
moving passenger van, that fact alone does not make this case sufficiently “special or
“unusual” to warrant an upward departure of eight levels. In making this argument,
Appellant does himself no favor by citing two key provisions of the U.S. Sentencing
10
Guidelines. First, Appellant cites § 5K2.0, and states that “a district court may grant an
upward departure where circumstances exist that the guidelines do not adequately take
into consideration.” (Appellant Br., p. 15.) Second, Appellant cites U.S.S.G. § 5k2.6
which provides:
If a weapon or dangerous instrumentality was used or possessed in the
commission of the offense[,] the court may increase the sentence above the
authorized guidelines range. The extent of the increase ordinarily should
depend on the dangerousness of the weapon, the manner in which it was used,
and the extent to which its use endangered others. The discharge of a firearm
might warrant a substantial sentence increase.
(Appellant Br., p. 16.) Appellant then asserts, “[a]lthough a firearm is a dangerous
weapon, its dangerousness is taken into account under 18 U.S.C. 922(g)(1), felon in
possession of a firearm.” (Appellant Br., p. 16.) Appellant disregards the finding that he
discharged the firearm twice, and instead contends that the weapon was used only “in
conjunction with a drug crime”, which already provided a four-level sentence
enhancement. (Id.) When Appellant does address the firearm discharge, he asserts that
“no one was injured” and that “no one was endangered”. (App. 16-17.) Appellant is
correct that neither occupant of the van was injured, but it flies in the face of common
sense to say that “no one was endangered” when Appellant fired twice at a moving van,
once hitting the hood, and once hitting the windshield. Indeed, this situation is not one
typically contemplated by the guidelines. In such a case, the District Court was
authorized to impose “a substantial sentence increase” pursuant to U.S.S.G. § 5K2.6.
Finally, Appellant contends that the extent of the departure was unreasonable.
11
(Appellant Br., p. 17.) He specifically argues that an eight-level departure was “too
large”, and that the District Court improperly calculated the departure. (Id.) If a District
Court “finds that there exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration ... by the guidelines”, then the court may
depart from the “relevant guideline range”.3 See United States v. Queensborough, 227
F.3d 149, (3d Cir. 2000) (citing United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.
1990)).
Here, the Government analogized Appellant’s conduct to attempted murder, and
recommended an offense level of 33. (App. 91.) At the sentencing hearing, the
Government remarked that the same offense level would result if the Court added four
levels for each victim who was assaulted when Appellant fired twice at the van. (App.
91-92.) We have held that, where an appropriate circumstance exists, reasoning by
analogy “to the guidelines ... is a useful and appropriate tool for determining what offense
level a defendant’s conduct most closely approximates.” Queensborough, 227 F.3d at
160. Because Appellant fired his weapon twice at a moving vehicle with two passengers,
his conduct does approximate that of attempted murder. Murder is defined as “the
3
Parties are entitled reasonable notice as to the grounds for departure. Burns v. United
States, 501 U.S. 129, 138-39 (1991). As the U.S. Probation Officer informed the District
Court that it “could upwardly depart because [Appellant] discharged a firearm during the
offense striking a vehicle containing two passengers”, see P.S.R., Part.E, ¶ 63, and the
Government submitted a sentencing memorandum to the Court and Appellant which
expressly called for an upward departure of eight levels, (Appellee Br., p. 9.), notice was
properly given.
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unlawful killing of a human being with malice aforethought.” 18 U.S.C. § 1111(a).
Malice aforethought “is not synonymous with premeditation ... but may also be inferred
from circumstances which show a wanton and depraved spirit, a mind bent on evil
mischief without regard to its consequences.” Gov’t of Virgin Islands v. Lake, 362 F.2d
770, 774 (3d Cir. 1966). Here, Appellant’s conduct epitomizes a “wanton and depraved
spirit.” Moreover, as Judge Davis told Appellant at the re-sentencing, “when you fire two
bullets, that becomes an element of premeditation.” (App. 118.)
Appellant refutes the analogy to attempted murder, instead contending that a four-
level upward departure consistent with aggravated assault is the proper cross-reference.
(Appellant Br., p. 18.) He cites United States v. Corbin, 998 F.2d 1377 (7th Cir. 1993),
and notes that the Seventh Circuit affirmed a sentence based on a violation of
§ 922(g)(1)– which was then cross-referenced with the applicable guideline for
aggravated assault. (Id.) Appellant’s reliance on that case is misguided, however,
because the facts in Corbin are inapposite to the present case. In Corbin, the appellant
never fired his weapon. He did press it against his ex-girlfriend’s head, though, which
subsequently caused a “round reddened spot”. Corbin, 998 F.2d at 1380. Such an act is
plainly consistent with horn book aggravated assault, as the appellant caused bodily injury
with a deadly weapon. W AYNE R. L AF AVE & A USTIN W. S COTT, J R., C RIMINAL L AW 608
(1972).
By contrast, Appellant in this case actually discharged his weapon twice, each time
13
aiming at a moving van with two passengers, and each time hitting the van. As such, the
two cases are inapposite. In any event, it cannot be said that the District Court abused its
discretion when it departed upward eight levels. This conclusion is buttressed by that
notion that “[t]he sentencing judge has access to, and greater familiarity with, the
individual case and the individual defendant before him than the Commission or the
appeals court.” Rita v. United States, 551 U.S. ---, 127 S. Ct. 2456, 2469 (2007).
B. Reasonableness of the Sentence
The second issue presently before this Court is whether Appellant’s sentence was
unreasonable. Because we hold that Appellant waived this ground for appeal in his plea
agreement, we need not reach the merits of this argument. As noted above, Appellant’s
plea agreement contained the following relevant terms:
(A) Notwithstanding the waiver provision above, if the government
appeals from the sentence, then the defendant may file a direct
appeal of his sentence.
(B) If the government does not appeal, then ... the defendant may
file a direct appeal but may raise only claims that:
(i) if the sentence exceeded the statutory maximum; or
(ii) if the judge erroneously departed upward from the
otherwise applicable sentencing guideline range.
Here, the District Court did not exceed the statutory maximum (ten years) when it sentenced
Appellant to 96 months, nor did the Government appeal the sentence. Appellant’s only valid
ground for appeal, therefore, is whether the District Court erroneously departed upward from
the otherwise applicable sentencing guideline range, pursuant to 10(B)(ii) of the plea
14
agreement. We addressed that argument above, and concluded that the District Court did not
erroneously depart upward.
Waivers of appeals are generally “permissible and enforceable.” See United States
v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).4 When waivers of appeal are entered into
“knowingly and voluntarily,” they are presumed valid “unless they work a miscarriage of
justice.” See United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005) (emphasis
added). Lockett is similar to the case before us. The appellant in that case pleaded guilty
and was sentenced pre-Booker. Id. He thereafter filed an appeal, challenging his
sentence post-Booker. Id. Specifically, he argued that the subsequent development in the
law invalidated the appeal waiver contained in his plea agreement, thereby giving him the
right to appeal his sentence. Id. This Circuit rejected that argument, holding that “where
a criminal defendant has voluntarily and knowingly entered into a plea agreement in
which he or she waives the right to appeal, the defendant is not entitled to resentencing in
light of Booker.” Id. Here, Appellant waived his right to appeal and was sentenced pre-
Booker. As a result, he is not entitled to a de novo sentencing hearing in light of Booker,
4
In Khattak, we noted that ten other Courts of Appeals have held waivers of appeal
generally permissible and enforceable. Id. at 560-61 (citing United States v. Teeter, 257
F.3d 14, 21 (1st Cir. 2001); United States v. Fisher, 232 F.3d 301, 303 (2d Cir. 2000);
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000); United States v. Branam, 231
F.3d 931, 932 (5th Cir. 2000); United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.
2001); United States v. Jemison, 237 F.3d 911, 916-18 (7th Cir. 2000); United States v.
Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000); United States v. Nguyen, 235 F.3d
1179, 1184 (9th Cir. 2000); United States v. Rubio, 231 F.3d 709, 711 (10th Cir. 2000);
United States v. Howle, 166 F.3d 1166, 1168-69 (11th Cir. 1999)).
15
nor can he now challenge his sentence as unreasonable.
For whatever reason, Appellant does not address this waiver issue in his brief. As
a result, there is no dispute as to whether enforcement of the waiver results in a
miscarriage of justice. The Government contends that it would not, and cites our decision
in United States v. Jackson, 523 F.3d 234, 244 (3d Cir. 2008) to substantiate its
contention. Like the situation here, the appellant’s appeal in that case relied wholly on
the claim that the underlying sentence was unreasonable. Id. We stated:
In light of Gall’s deferential abuse-of-discretion standard for reviewing
sentence appeals, it will be a rare and unusual situation when claims of an
unreasonable sentence, standing alone, will be sufficient to invalidate a waiver
because of a miscarriage of justice.
Id. (citing Gall v. United States, supra, at 600).
Even though Appellant does not address the waiver argument, our reasoning in
Jackson applies squarely to the case before the Court. Appellant stated that he understood
the terms of the plea agreement, and he has alleged nothing more on this second ground
than mere unreasonableness. As for whether this case constitutes one of the “rare and
unusual” situations where the claim of unreasonableness alone could invalidate a waiver,
we hold that it does not. The District Court was within its discretion when it analogized
Appellant’s conduct to attempted murder under the guidelines. The subsequent sentence
was consistent with the plea agreement, which stated that “the Court may make factual
and legal determinations that differ from these stipulations and that may result in an
increase or decrease in the Sentencing Guidelines range and the sentence that may be
16
imposed.” (Suppl. App. 3.) In sum, Appellant has waived his statutory right to appeal on
this ground.
V. CONCLUSION
For the above reasons and the reasons the District Court set forth, we affirm the
sentence of James Shedrick re-ordered on November 13, 2007.
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