US v. Ricardo Lispscomb, No. 11-4887 (4th Cir. 2012)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4887 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RICARDO JOHN LISPSCOMB, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 cocaine he base. pleaded guilty Lispscomb to argues conspiracy that the to distribute district court procedurally erred in failing to give sufficient reasoning in denying an objection sentencing. conspiracy He while to also he the presentence contends was that serving a he report (PSR) at from the probation and withdrew period of therefore it was procedural error to add two criminal history points for committing justice sentence. offense while serving a criminal Finding no error, we affirm. Lispscomb indictment the pleaded against him guilty charging to him count with one of the 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 unsupervised probation. for misdemeanor in a six-month sentence of One point was assessed in paragraph 72 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 2 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 points was three, category II. number of criminal history 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. was not release, involved counsel in the contended, Although Lispscomb argued that he conspiracy and while stated on several unsupervised 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. did not participate in the conspiracy during his If he 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 3 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 standard. This under a deferential abuse of discretion Gall v. United States, 552 U.S. 38, 41, 51 (2007). review both the procedural and substantive reasonableness of the sentence. Id. at 51. entails appellate consideration of Lispscomb contends that his sentence is procedurally unreasonable. In determining procedural reasonableness, this court considers whether defendant s the Guidelines district range, court properly treated the calculated 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 4 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 unnecessary the dispute either or because determine the matter that a will ruling not is 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. 911 (4th Cir. 1994). United States v. Walker, 29 F.3d 908, 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. that his waiver at the He argues in his reply brief 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 conspiracy. 5 withdrawing from the 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). been established conspiracy, the that a defendant defendant s has membership Once it has participated in a in conspiracy a 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). 6 The conspiracy in evidence shows 2007 distributed and that Lispscomb drugs in joined 2007. inactive until 2010, when he again distributed drugs. He the was 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, and 433 F.3d at 391. Lispscomb s relocation employment in 2009 does not constitute affirmative action to defeat or disavow the conspiracy, particularly in light of his return to it. there is See West, 877 F.2d at 289. insufficient evidence to We determine that demonstrate that Lispscomb withdrew from the conspiracy prior to his probation in 2009. We therefore affirm the judgment. oral argument adequately because presented in the the facts and materials We dispense with legal before contentions the court are and argument would not aid the decisional process. AFFIRMED 7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
