United States v. Shippy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5097

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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