UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4887
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICARDO JOHN LISPSCOMB,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cr-00448-CCE-9)
Submitted: September 7, 2012 Decided: September 12, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert A. Broadie, CAROLINA LEGAL SOLUTIONS, High Point, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo John Lispscomb appeals the 120-month sentence
imposed after he pleaded guilty to conspiracy to distribute
cocaine base. Lispscomb argues that the district court
procedurally erred in failing to give sufficient reasoning in
denying an objection to the presentence report (PSR) at
sentencing. He also contends that he withdrew from the
conspiracy while he was serving a period of probation and
therefore it was procedural error to add two criminal history
points for committing the offense while serving a criminal
justice sentence. Finding no error, we affirm.
Lispscomb pleaded guilty to count one of the
indictment against him charging him with conspiracy to
distribute 280 grams or more of cocaine base from January 2007
to November 30, 2010. The minimum sentence was ten years. The
PSR determined that Lispscomb did not qualify for the safety
valve provision because he had four criminal history points.
One point was assessed at paragraph 71 for possession of drug
paraphernalia, which resulted in a six-month sentence of
unsupervised probation. One point was assessed in paragraph 72
for misdemeanor possession of drug paraphernalia, which
Lispscomb pleaded guilty to and received a prayer for judgment
continued. Because the conviction in paragraph 71 occurred
during the conspiracy, the PSR assessed two additional criminal
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history points under United States Sentencing Guidelines Manual
§ 4A1.1(d) (2010).
At sentencing, the district court struck paragraph 72
from the PSR. The court still found that because of the
conviction in paragraph 71, the two additional criminal history
points were valid and the total number of criminal history
points was three, category II. Counsel for the defendant argued
that the Government had to prove that Lispscomb participated in
the conspiracy while he was on unsupervised probation, which was
from March to September 2009. Although Lispscomb argued that he
was not involved in the conspiracy while on unsupervised
release, counsel contended, and stated several times, that
“[w]e’re not arguing that he withdrew from this conspiracy.”
Counsel further stated, “this is not a withdrawal issue, it is
an issue of whether he committed any part of the instant offense
while on probation during that six month period of time.” If he
did not participate in the conspiracy during his probation
period, the additional two criminal history points under USSG
§ 4A1.1(d) could not be included. The Government argued that
once a conspiracy is shown to exist, the defendant is deemed
part of the conspiracy unless he affirmatively communicates his
withdrawal.
With a total offense level of 29 and criminal history
category II, the Sentencing Guidelines range was the statutory
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minimum. The district court denied Lispscomb’s objection to the
additional two criminal history points attributed because the
conspiracy offense occurred during Lispscomb’s probation. The
court stated, “while I understand your argument on Paragraph 75
and the probation, I don’t think it’s correct so I’m going to
leave Paragraph 75 as part of the presentence report and leave
those two points there.” The court imposed the 120-month
minimum sentence.
We review a sentence imposed by the district court for
reasonableness “under a deferential abuse of discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence. Id.
at 51. Lispscomb contends that his sentence is procedurally
unreasonable.
In determining procedural reasonableness, this court
considers whether the district court properly calculated the
defendant’s Guidelines range, treated the Guidelines as
mandatory, considered the 18 U.S.C.A. § 3553(a) (West 2006 &
Supp. 2012) sentencing factors, selected a sentence based on
clearly erroneous facts, or failed to explain sufficiently the
selected sentence. Id. at 49-51.
On appeal, Lispscomb argues that the district court
procedurally erred in failing to give sufficient reasoning in
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denying the objection. Rule 32(i)(3)(B) of the Federal Rules of
Criminal Procedure requires a district court “-for any disputed
portion of the presentence report or other controverted matter-
[to] rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in
sentencing.” The purpose of the rule “is to ensure that a
record is made as to how the district court ruled on any alleged
inaccuracy in the PSR.” United States v. Walker, 29 F.3d 908,
911 (4th Cir. 1994). We conclude that the district court’s
ruling was sufficient under Rule 32(i)(3)(B).
Lispscomb’s theory below is that the Government had to
prove that he committed an overt act while he was on probation.
On appeal, he has transformed this issue into an argument that
he withdrew from the conspiracy and the distribution in 2010 was
part of a different conspiracy. He argues in his reply brief
that his waiver at the sentencing hearing was merely an
indication that he was not contesting his participation in the
conspiracy as a whole, so that he would not lose acceptance of
responsibility points. He suggests that counsel’s comments that
Lispscomb was not arguing withdrawal was only recognition that
he did not make a verbal statement withdrawing from the
conspiracy.
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After reviewing the sentencing transcript, it appears
that Lispscomb explicitly waived the withdrawal argument at the
sentencing hearing, affirmatively stating that he was not
arguing abandonment or withdrawal, just that he was not active
in the conspiracy from March to October 2009. The Defendant’s
explicit waiver waives any potential issue that may be raised on
appeal. See United States v. David, 83 F.3d 638, 641 n.1 (4th
Cir. 1996).
However, even considering the abandonment issue,
Lispscomb did not meet his burden to prove that he withdrew.
Withdrawal from a conspiracy “requires the defendant to take
affirmative actions inconsistent with the object of the
conspiracy and communicate his intent to withdraw in a manner
likely to reach his accomplices.” United States v. Cardwell,
433 F.3d 378, 391 (4th Cir. 2005) (citation omitted); see United
States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986). Once it has
been established that a defendant has participated in a
conspiracy, the defendant’s membership in a conspiracy is
presumed to continue until he withdraws from the conspiracy by
affirmative action. Withdrawal must be shown by evidence that
the defendant acted to defeat or disavow the purposes of the
conspiracy. United States v. West, 877 F.2d 281, 289 (4th Cir.
1989).
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The evidence shows that Lispscomb joined the
conspiracy in 2007 and distributed drugs in 2007. He was
inactive until 2010, when he again distributed drugs. Although
he may not have committed an overt act furthering the conspiracy
during his period of probation, each member of the conspiracy is
not required to commit an overt act to be found guilty of
conspiracy so long as at least one member commits an act. See
Cardwell, 433 F.3d at 391. Lispscomb’s relocation and
employment in 2009 does not constitute affirmative action to
defeat or disavow the conspiracy, particularly in light of his
return to it. See West, 877 F.2d at 289. We determine that
there is insufficient evidence to demonstrate that Lispscomb
withdrew from the conspiracy prior to his probation in 2009.
We therefore affirm the 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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