United States v. Shivers , 146 F. App'x 609 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SEAN CHRISTOPHER SHIVERS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-03-200)
Submitted: July 29, 2005 Decided: August 22, 2005
Before LUTTIG and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark L. French, Troy N. Giatras, GIATRAS & WEBB, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
John L. File, Assistant United States Attorney, Beckley, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sean Christopher Shivers appeals the fifty-one-month
sentence he received after his guilty plea to aiding and abetting
distribution of a quantity of cocaine base (crack), 21 U.S.C. § 841(2000). Shivers raises two issues on appeal: (1) whether the
district court clearly erred in denying him an adjustment for
acceptance of responsibility because he was charged with domestic
battery while awaiting sentencing, U.S. Sentencing Guidelines
Manual § 3E1.1 (2003), and (2) whether, under Blakely v.
Washington, 542 U.S. 296 (2004), the district court’s determination
of the drug amount violated the Sixth Amendment and requires
resentencing. For the reasons explained below, we affirm.
Shivers and co-defendant Andre Charlton were arrested
immediately after Charlton sold crack to a confidential informant.
Law enforcement officers seized a total of 9.68 grams of crack,
which was the quantity sold to the confidential informant plus a
small amount in Charlton’s possession. In a statement made to law
enforcement officers during his arrest, Shivers admitted that he
obtained what he believed to be a half-ounce of crack (14.175
grams) and gave it to Charlton, who sold it to the confidential
informant. After his guilty plea, Shivers repeated this statement
to the probation officer in the presence of his lawyer. Shivers
did not contest the drug quantity at sentencing; he objected only
to the probation officer’s refusal to recommend a minor role
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adjustment under USSG § 3B1.2, or a reduction for acceptance of
responsibility.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that Blakely applied to the federal sentencing
guidelines and that the mandatory guidelines scheme that provided
for sentence enhancements based on facts found by the court
violated the Sixth Amendment. Booker, 125 S. Ct. at 746-48, 755-
56. The Court remedied the constitutional violation by severing
and excising the statutory provisions that mandate sentencing and
appellate review under the guidelines, thus making the guidelines
advisory. Id. at 756-57.
Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), this court held that a sentence that was
imposed under the pre-Booker mandatory sentencing scheme and was
enhanced based on facts found by the court, not by a jury or
admitted by the defendant, constitutes plain error that affects the
defendant’s substantial rights and warrants reversal under Booker
when the record does not disclose what discretionary sentence the
district court would have imposed under an advisory guideline
scheme. Hughes, 401 F.3d at 546-56.
Shivers contends that, because he did not admit in open
court the drug quantity used by the district court to calculate his
offense level, the court’s adoption of the base offense level
recommended in the presentence report violated the Sixth
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Amendment.1 Because Shivers neither contested the calculation of
his base offense level nor raised a Sixth Amendment challenge at
sentencing, our review is for plain error. United States v. Olano,
507 U.S. 725, 732 (1993); Hughes, 401 F.3d at 547. Under the plain
error standard, Shivers must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial rights.
Olano, 507 U.S. at 732-34. Even when these conditions are
satisfied, this court may exercise its discretion to notice the
error only if the error “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Hughes, 401 F.3d at
555 (internal quotation marks omitted).
Because Shivers admitted the relevant quantity of crack
and did not contest the calculation of his base offense level based
on that amount, we conclude that no Sixth Amendment violation
occurred and the district court did not err in adopting the base
offense level recommended in the presentence report. Moreover,
even if the district court’s adoption of the recommended quantity
of crack constituted judicial fact-finding that increased the
sentence and amounted to plain error, we will not exercise our
discretion to notice the error. United States v. Cotton, 535 U.S.
625, 633 (2002) (holding that sentence exceeding maximum authorized
1
Shivers asserts that his base offense level should be 12,
USSG § 2D1.1(c)(14) (less than 250 mg of crack), further reduced to
10 under § 2D1.1(b)(6) (safety valve), and his guideline range
should be 6-12 months.
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by facts alleged in the indictment would not be vacated on plain
error review because evidence supporting judge-found facts on which
sentence was based was “overwhelming” and “essentially
uncontroverted”).2
We review the district court’s determination that Shivers
had not accepted responsibility for clear error. United States v.
Kise, 369 F.3d 766, 771 (4th Cir. 2004). One of the factors the
court may consider is whether the defendant has voluntarily
terminated or withdrawn from criminal conduct. USSG § 3E1.1,
comment. (n.1(b)). Shivers disputes the court’s decision to deny
him the adjustment because of unrelated criminal conduct. However,
he acknowledges that most circuits to address the issue hold that
a sentencing court does not clearly err if it chooses to deny an
adjustment for acceptance of responsibility based on commission of
criminal conduct that is different from the crime to which the
defendant pled guilty. See United States v. Prince, 204 F.3d 1021,
1023-24 (10th Cir. 2000); United States v. Ceccarani, 98 F.3d 126,
130-31 (3d Cir. 1996); United States v. Byrd, 76 F.3d 194, 197 (8th
Cir. 1996); United States v. McDonald, 22 F.3d 139, 144 (7th Cir.
1994); United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994);
2
Shivers does not claim that the district court erred in
failing to treat the guidelines as advisory and, in any event,
cannot satisfy the standard set out by this court in United
States v. White, 405 F.3d 208 (4th Cir. 2005), requiring an
appellant to demonstrate actual prejudice from the application of
the mandatory guideline scheme. Id. at 217-24.
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United States v. O’Neill, 936 F.2d 599, 600-01 (1st Cir. 1991);
United States v. Watkins, 911 F.2d 983, 984 (5th Cir. 1990); but
see United States v. Morrison, 983 F.2d 730, 733-35 (6th Cir. 1993)
(holding that new unrelated criminal conduct should not be
considered). In light of these authorities, we are persuaded that
the district court did not clearly err in determining that Shivers
was not entitled to a reduction for acceptance of responsibility.
We therefore affirm the sentence imposed by the district
court. 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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