US v. Clevo Shuff, No. 12-4707 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4707 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLEVO SHUFF, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:09-cr-00008-FDW-1) Submitted: April 29, 2013 Decided: July 18, 2013 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Randolph Marshall Lee, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Melissa L. Rikard, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clevo Shuff was convicted after a jury trial of one count of conspiracy to distribute and to possess with intent to distribute at least fifty grams of cocaine base and aiding and abetting, in violation of 18 U.S.C. § 2 (2006), 21 U.S.C.A. § 841(b)(1)(A) (West 2006 & Supp. 2012), and 21 U.S.C. § 846 (2006) (count one), one count of possession with intent to distribute at least five grams of cocaine base and aiding and abetting, in violation § 841(a), (b)(1)(B) of (count 18 U.S.C. two), and § 2 one and count 21 of U.S.C.A. using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006) (count three). On remand following this court s affirmance of Shuff s convictions and sentence on count three and vacatur of Shuff s sentences on counts one and two, * the district court imposed an upward variance from the Guidelines range of 130 to 162 months imprisonment and sentenced Shuff * to concurrent terms of 240 United States v. Shuff, 470 F. App x 158, 162 (4th Cir. 2012) (No. 11 4426) (holding that Shuff s prior state convictions were not punishable by terms of imprisonment exceeding one year and thus were not proper predicates for purposes of 21 U.S.C.A. § 841(b)(1)(A) and the career offender Sentencing Guideline and vacating Shuff s life sentence on count one and career-offender-based sentence of 360 months imprisonment on count two). 2 months imprisonment. sentences. On appeal, Shuff challenges these We affirm. We review the district court s sentence, whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). review involves sentence for second, we two steps; significant review United States v. under procedural the Pauley, the 511 F.3d This standard of first, we errors, substance (examining Gall, 552 U.S. at 50-51). examine the under the and of 468, standard. the 473 (4th sentence. Cir. 2007) Significant procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence including an explanation for any Gall, 552 U.S. at 51. deviation from the Guidelines range. If there are no significant procedural errors, we then consider the substantive reasonableness of the sentence, tak[ing] circumstances. into account the totality of the Id. When the district court imposes a variant sentence, we consider respect whether to its the . . . court decision to acted impose 3 such reasonably a sentence both with and with respect to range. the extent of the divergence from the sentencing United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). district court sentence outside range. Such a sentence is unreasonable if the relie[d] the on improper properly factors calculated in imposing advisory a sentencing Id. After review of the record and the parties briefs, we reject as without merit Shuff s argument that the district court s consideration on remand of the drug quantity involved in his offenses and his role with respect to his co-defendant matters on which the Government relied in part in arguing for an upward variance from the Guidelines range violated the mandate rule. The mandate rule forecloses relitigation of issues expressly or impliedly decided by the appellate court, as well as issues decided by the district court but foregone on appeal or otherwise waived, for example because they were not raised in the district court. (4th Cir. 1993). United States v. Bell, 5 F.3d 64, 66 Shuff and the Government, however, lacked the opportunity or incentive to raise these issues in his initial appeal or in a cross-appeal because the district court initially sentenced Shuff to the then-statutorily-required sentence of life imprisonment on count one, 21 U.S.C.A. § 841(b)(1)(A), and a career-offender-based-sentence on count two. Accordingly, the mandate rule did not bar the district court s consideration of 4 these matters 306 F.3d on 1217, remand. 1229-30 See (2d United Cir. States 2002) v. a ( [I]f Quintieri, sentencing determination had no practical effect on a . . . sentence at the original sentencing but becomes relevant only after appellate review, a [party] is free to challenge that sentencing determination on remand, and ultimately on reappeal, despite the failure to challenge that determination initially. ); cf. Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505 (4th Cir. 1992) ( It is elementary that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand. (internal quotation marks omitted)). Shuff procedurally also challenges unreasonable We reject these totality, Shuff s and contentions arguments his as as sentences as substantively well. in unreasonable. Considered support of otherwise his in their claim of procedural error and his second argument supporting his claim of substantive error amount to a claim that the 240-month sentences are unreasonable because the district court violated the mandate rule in considering the drug quantity involved in his offenses, his role relative to his co-defendant, and his criminal history as part of its analysis under 18 U.S.C. § 3553(a). mandate rule did not prohibit the district However, the court from considering these matters in arriving at a sentence that was 5 sufficient, but not greater than necessary, to comply with § 3553(a) s sentencing objectives, and Shuff does not identify any other rule of sentencing procedure prohibiting the district court from considering these issues on remand or suggest that the facts the court relied on in imposing the variant sentences were clearly or otherwise erroneous. Additionally, calculating Shuff s at sentencing Guidelines range, on hearing remand after his allocution, and hearing argument from counsel the district court concluded that an upward variance under 18 U.S.C. § 3553(a) to concurrent terms of 240 months imprisonment was necessary to achieve the purposes of sentencing. In reaching this conclusion, the district court properly considered the nature and circumstances of Shuff s offense conduct and the sentencing range established by the Guidelines, § 3553(a)(1), (4)(A), making note of Shuff s expressed threat to shoot police officers, the drug amounts involved in his offenses, and Shuff s role with respect to his co-defendant. The court also properly considered Shuff s history and characteristics and the need for the sentence to deter Shuff and to protect the public, § 3553(a)(1), (2)(B)-(C), addressing on rehabilitation The district the record efforts court s Shuff s criminal following initial consideration of the history and sentencing. relevant 18 U.S.C. § 3553(a) factors and articulation of its reasons for varying 6 from the Guidelines range support our decision to defer to its determination States v. as to the extent of 630 F.3d Diosdado-Star, the variance. 359, 366-67 See United (4th Cir.) (affirming substantive reasonableness of variance sentence six years greater than Guidelines range because sentence was based on the district court s examination of the § 3553(a) factors), cert. denied, 131 S. Ct. 2946 (2011); see also United States v. Angle, 598 F.3d 352, 359 (7th Cir. 2010) ( All that matters is that the sentence imposed be reasonable in relation to the court s amended package of reasons given by the court. ). We judgment. legal before therefore affirm the district We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7
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