United States v. Jimmy Shupe ( 2022 )

USCA4 Appeal: 20-4200 Doc: 60 Filed: 08/11/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4200
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY MICHAEL SHUPE, a/k/a Booger,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Big
Stone Gap. James P. Jones, District Judge. (2:19-cr-00006-JPJ-PMS-19)
Submitted: July 20, 2021 Decided: August 11, 2022
Before GREGORY, Chief Judge, HARRIS, Circuit Judge, and KEENAN, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Krysia Carmel Nelson, LAW OFFICES OF KRYSIA CARMEL NELSON,
PLC, Keswick, Virginia, for Appellant. Daniel P. Bubar, Acting United States Attorney,
Jonathan Jones, Assistant United States Attorney, Anthony P. Giorno, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jimmy Michael Shupe was convicted following a jury trial of conspiracy to
distribute and possess with intent to distribute 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846. The district court calculated Shupe’s advisory range under the U.S.
Sentencing Guidelines Manual (2018) at 360 months to life imprisonment and, after
granting a downward variance from this range, sentenced him to 240 months’
imprisonment. On appeal, Shupe challenges his conviction, arguing that the district court
erred in admitting into evidence Facebook records containing messages between accounts
on that service of two charged coconspirators and accounts bearing the names “Jimmy M
Shupe” and “Booger Shupe.” Shupe also challenges the procedural reasonableness of his
sentence, arguing that the district court miscalculated his Sentencing Guidelines range by
erroneously attributing to him 4.5 kilograms of ice under USSG § 2D1.1. Finding no
reversible error, we affirm.
Shupe contends that the Government failed to authenticate the Facebook messages
because it offered insufficient evidence to show he authored and received them. Because
Shupe did not preserve this issue for appeal, we review it for plain error only. United
States v. Moore, 810 F.3d 932, 939 (4th Cir. 2016). “Thus, we may reverse only on a
finding that (1) there was error, (2) that was plain, (3) that affected substantial rights, and
(4) that seriously affected the fairness, integrity, or public reputation of judicial
proceedings” Id. (internal quotation marks and brackets omitted).
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“A proponent of evidence must ‘produce evidence sufficient to support a finding
that the item is what the proponent claims it is.’” United States v. Recio, 884 F.3d 230,
236 (4th Cir. 2018) (quoting Fed. R. Evid. 901(a)). The authentication burden under Rule
901, however, “is not high.” Id. (internal quotation marks omitted). “The district court
must merely conclude that the jury could reasonably find that the evidence is authentic, not
that the jury necessarily would so find.” Id. at 236-37 (internal quotation marks omitted).
Here, the Government presented certifications from Facebook records custodians
showing that the Facebooks records containing the messages were made “at or near the
time the information was transmitted by the Facebook user.” Shupe does not dispute that
the Facebook users on one side of the messaging transactions involving the “Shupe”
accounts were or were linked to the other charged coconspirators. And the evidence
sufficiently tied the “Facebook user[s]” on the other side of these transactions to Shupe.
See Greer v. United States, 141 S. Ct. 2090, 2098 (2021) (noting that appellate court
conducting plain-error review may consider entire record). It showed that the user names
associated with the accounts were “Jimmy M Shupe” and “Booger Shupe.” Shupe
admitted he knew the other charged coconspirators, that the account associated with the
“Booger Shupe” name was his account on Facebook, that audio messages sent through that
account were of him, and that he had more than one account on Facebook. Messages from
the “Jimmy M Shupe” account identified the account as belonging to “Booger” and the
author as “Boog,” Shupe’s acknowledged nickname and the beginning portion of that
nickname, respectively. Certain messages from that account also identified the user as sick
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and living and working with Shupe’s cousin, matters to which Shupe admitted during his
testimony.
Shupe emphasizes on appeal that Facebook accounts can get “hacked,” asserts that
in some of the messages, the sender identifies as someone who admitted to hacking into
the account, and asserts that the Government conceded that his cousin Honey Lytle
admitted authoring messages sent on the “Jimmy” Shupe account. Our review of the record
confirms, however, that the Government did not so concede, and that Lytle did not admit
to “hacking” into the “Shupe” accounts. Lytle admitted only that she could have authored
one of the messages, and Shupe only speculated that messages were sent over the “Jimmy”
Shupe account after Lytle took his phone. Moreover, “what matters is not whether a jury
could find that [Shupe] did not author [or receive] the [messages] in question, but rather
whether the jury could reasonably find that he did.” Recio, 884 F.3d at 237. Given the
strong evidence here that the accounts were Shupe’s and the lack of evidence of
unauthorized access, the jury could find Shupe sent and received the messages. Shupe thus
fails to show plain error in their admission.
Shupe also challenges the procedural reasonableness of his 240-month sentence,
arguing that the district court miscalculated his Guidelines range by erroneously attributing
to him 4.5 kilograms of ice. * In Shupe’s view, the district court erred by failing to make
the specific and particularized factual findings needed to attribute that amount of ice to
*
Under the Guidelines, “ice” is “a mixture or substance containing
d-methamphetamine hydrochloride of at least 80% purity.” USSG § 2D1.1(c) cmt. n.(C).
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him. The court, he continues, thus should have calculated his Guidelines range using the
methamphetamine mixture Guideline in accordance with the rule of lenity. Shupe did not
raise these contentions in the district court, and we therefore review this challenge for plain
error as well. See United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010).
The Government must prove by a preponderance of the evidence the amount of a
controlled substance attributable to a defendant. United States v. Carter, 300 F.3d 415,
425 (4th Cir. 2002). In calculating drug quantity, “a sentencing court may give weight to
any relevant information before it, . . . provided that the information has sufficient indicia
of reliability to support its accuracy.” United States v. Crawford, 734 F.3d 339, 342
(4th Cir. 2013) (internal quotation marks and brackets omitted). “Under the Guidelines,
the drug quantities that may be attributed to the defendant include the quantities associated
with the defendant’s offense of conviction and any relevant conduct.” United States v.
Flores-Alvarado, 779 F.3d 250, 255 (4th Cir. 2015). Relevant conduct in conspiracy cases
includes “all acts and omissions of others that were . . . within the scope of the jointly
undertaken criminal activity, . . . in furtherance of that criminal activity,
and . . . reasonably foreseeable in connection with that criminal activity . . . that occurred
during the commission of the offense of conviction.” USSG § 1B1.3(a)(1)(B). “[W]e
require sentencing courts to make particularized findings with respect to both the scope of
the defendant’s agreement and the foreseeability of the conduct at issue.” Flores-Alvarado,
779 F.3d at 256 (internal quotation marks, emphases, and brackets omitted).
Shupe argues that the district court failed to make specific and particularized
findings regarding the amount of ice foreseeable to him and within the scope of his
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agreement because it merely “concluded that 4.5 kilo[grams] of ice was attributable to the
conspiracy and that this amount was attributable to [him] because the jury found him guilty
of participating in the conspiracy.” We reject this argument.
The presentence report and sentencing testimony on which the district court relied
to make its drug quantity finding in Shupe’s case showed that, as part of his participation
in the conspiracy—where conspirators bought and sold ice—Shupe himself possessed and
distributed over 4.5 kilograms of ice. Shupe did not establish this information was
incorrect, and we conclude it was sufficient to support the district court’s determination by
a preponderance of the evidence that the relevant drug quantity attributable to Shupe was
4.5 kilograms of ice. See United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011) (“The
defendant bears the burden of establishing that the information relied upon by the district
court—here the [presentence report]—is erroneous.”); United States v. Randall, 171 F.3d
195, 210-11 (4th Cir. 1999) (“If the district court relies on information in the presentence
report . . . in making findings, the defendant bears the burden of establishing that the
information relied on by the district court in making its findings is incorrect; mere
objections are insufficient.”). The district court, we conclude, did not plainly err in
calculating Shupe’s base and total offense level based on this drug weight and type,
see USSG §§ 1B1.3(a)(1)(A), 2D1.1(a)(5), (c)(1), and we thus need not address the
sufficiency of any findings relative to Shupe’s accountability for the conduct of others.
Further, given the absence of any error by the district court in making particularized
determinations regarding the drug nature and weight attributable to Shupe based on his
conduct, there is no grievous ambiguity requiring application of the rule of lenity.
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Cf. Shular v. United States, 140 S. Ct. 779, 787-89 (2020) (discussing circumstances under
which rule may be invoked and applies). As the rule of lenity does not apply here, no plain
error is present based on the district court’s failure to employ it.
Accordingly, we affirm the criminal judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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