United States v. Shippy , 379 F. App'x 281 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5097
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHONDREKA J. SHIPPY,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:09-cr-00576-HMH-2)
Submitted: May 3, 2010 Decided: May 24, 2010
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, William J. Watkins, Jr., Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shondreka Shippy appeals her conviction and
thirty-month sentence after pleading guilty to one count of bank
fraud, in violation of 18 U.S.C. § 1344 (2006). Shippy asserts
that the district court erred when it: (i) sentenced her without
expressing a specific rationale for the sentence imposed; and
(ii) overruled her objection based on her leadership role in the
criminal activity to which she pled guilty. Taking Shippy’s
assertions in reverse order, we find that the district court did
not err when it applied the leadership enhancement to Shippy’s
offense level and that the district court’s explanation for
Shippy’s sentence was sufficient and, accordingly, affirm the
district court’s judgment.
The district court’s determination that Shippy had a
leadership role in the bank fraud scheme is a factual finding
that we review for clear error. See United States v. Kellam,
568 F.3d 125, 147-48 (4th Cir. 2009). To qualify for a
four-level increase under U.S. Sentencing Guidelines Manual
(“USSG”) § 3B1.1(a) (2008), a defendant must have been “an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” Indicia of
leadership or organizational roles, as opposed to managerial or
supervisory roles, include: (1) the exercise of decision-making
authority; (2) the nature of participation in the offense;
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(3) the recruitment of accomplices; (4) the claimed right to a
larger share of the fruits of the crime; (5) the degree of
participation in planning or organizing the offense; (6) the
nature and scope of the illegal activity; and (7) the degree of
control and authority exercised over others. USSG § 3B1.1, cmt.
n.4. “Leadership over only one other participant is sufficient
as long as there is some control exercised.” United States v.
Rashwan, 328 F.3d 160, 166 (4th Cir. 2003). Moreover, more than
one person may qualify as a leader or organizer of a criminal
association or conspiracy. USSG § 3B1.1, cmt. n.4.
Shippy relies on this court’s decision in United
States v. Chambers, 985 F.2d 1263 (4th Cir. 1993), and asserts
that her sentence should be vacated because the district court
failed to provide specific reasons for applying the enhancement.
It is true that, in Chambers, this court vacated the district
court’s sentence and remanded for further proceedings because,
“without specific factual findings showing that the district
court evaluated the defendant’s role in the offense in light of
the factors in [USSG § 3B1.1] . . ., we cannot conduct
meaningful appellate review of this issue.” Id. at 1269.
Unlike in Chambers, however, we can discern from the district
court’s comments and discussions with those present at Shippy’s
sentencing, as well as its explicit adoption of the presentence
investigation report’s detailed factual findings and
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calculations, that the district court evaluated Shippy’s role in
the bank fraud scheme in light of the USSG § 3B1.1 factors.
Accordingly, we reject Shippy’s assertion.
We also find that the district court’s explanation for
the sentence it imposed did not amount to procedural error.
After United States v. Booker, 543 U.S. 220 (2005), this court
reviews a sentence for reasonableness, using an abuse of
discretion standard of review for preserved error. Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires the court to ensure that the district court
committed no significant procedural error. United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008). Procedural errors
include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence — including an explanation for any deviation
from the Guidelines range.” Gall, 552 U.S. at 51.
For instance, “the district court must state in open
court the particular reasons supporting its chosen sentence
[and] set forth enough to satisfy the appellate court that [the
sentencing judge] has considered the parties’ arguments and has
a reasoned basis for exercising his own legal decisionmaking
authority.” United States v. Carter, 564 F.3d 325, 328 (4th
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Cir. 2009). In evaluating the district court’s explanation for
a selected sentence, this court has consistently held that,
while a district court must consider the statutory factors and
explain its sentence, it need not explicitly reference 18 U.S.C.
§ 3553(a) (2006) or discuss every factor on the record,
particularly when the district court imposes a sentence within a
properly calculated Guidelines range. United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006). At the same time, the
district court “may not presume that the Guidelines range is
reasonable,” but “must make an individualized assessment based
on the facts presented.” Gall, 552 U.S. at 50.
The district court’s explanation “need not be
elaborate or lengthy[,]” however. Carter, 564 F.3d at 330.
“That is especially true where, as here, the sentence is inside
the advisory guidelines range.” United States v. Johnson,
587 F.3d 625, 639 (4th Cir. 2009). As we recently noted: “Gall
was quite explicit that district courts should provide more
significant justifications for major departures than for minor
ones. But when a district court does not depart or vary at all,
it may provide a less extensive, while still individualized,
explanation.” Id. (internal citations, quotation marks and
brackets omitted). “This is because guidelines sentences
themselves are in many ways tailored to the individual and
reflect approximately two decades of close attention to federal
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sentencing policy.” Id. (internal quotation marks and citation
omitted).
If, and only if, this court finds the sentence
procedurally reasonable can the court consider the substantive
reasonableness of the sentence imposed. Carter, 564 F.3d at
328. We presume that a sentence within the Guidelines range is
reasonable. See United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007).
The record of Shippy’s sentencing hearing “make[s]
clear that the sentencing judge considered [Shippy’s] evidence
and arguments in fashioning its sentence[,]” and that it
“understood [Shippy’s] arguments for a [concurrent] sentence and
had reasons for rejecting those arguments.” United States v.
Lynn, 592 F.3d 572, 584 (4th Cir. 2010) (distinguishing Lynn’s
case from the situation faced by the sentencing court in Rita
and recognizing that “[n]o such discussion or questioning
occurred” at Lynn’s sentencing and that “the only time the
district court even acknowledged the defendant's arguments was
after it had imposed sentence” and even then “did so
obliquely”); see also Rita, 551 U.S. at 356 (“The sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.”).
The record also establishes that the district court adequately
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considered the § 3553(a) factors and determined that the
statute’s objectives would be accomplished with the sentence he
chose. See Gall, 552 U.S. at 54-56 (considering the district
court’s colloquy with the Government to determine whether the
district court adequately considered the relevant § 3553(a)
factors before fashioning its sentence). We accordingly presume
the reasonableness of Shippy’s within-Guidelines sentence.
Allen, 491 F.3d at 193.
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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