United States v. Houdersheldt , 395 F. App'x 66 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5107
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSHUA DAVID HOUDERSHELDT,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:09-cr-00096)
Submitted: May 25, 2010 Decided: September 9, 2010
Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Monica K. Schwartz, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua David Houdersheldt pled guilty to one count of
conspiracy to acquire and obtain possession of oxycodone by
fraud and one count of attempt to acquire and obtain possession
of oxycodone by fraud, both in violation of 21 U.S.C. § 846(2006), and was sentenced to seventy months in prison. On
appeal, Houdersheldt argues that the district court erred by
applying a four-level enhancement to his total offense level for
his role as an organizer and leader of a conspiracy involving
five or more people, pursuant to the U.S. Sentencing Guidelines
Manual (“USSG”) § 3B1.1(a) (2008). For the reasons that follow,
we affirm Houdersheldt’s sentence.
In his plea agreement, Houdersheldt waived his right
to appeal his sentence on all grounds, except a properly
preserved challenge to the district court’s determination of the
sentencing Guidelines range. He also agreed to a stipulation of
facts, which explained that he had forged prescriptions for
oxycodone using a prescription pad belonging to his father, and
that the prescriptions were not authorized. The stipulation
further stated that Houdersheldt twice drove individuals to a
pharmacy, where those individuals submitted the prescriptions,
obtained the Oxycodone, turned it over to Houdersheldt, and were
paid fifty dollars for the transaction. (J.A. 23-24). The
stipulation noted that Houdersheldt participated in these
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activities to support his own drug addiction, and explained that
he “lead [sic], organized and directed” the two other
individuals involved in the transactions. It further described
that Houdersheldt participated in “a series of similar
transactions beginning in at least 2008 and continuing to the
date of his arrest,” and during that time he obtained 92,400
milligrams of oxycodone, which was used by himself and others.
Houdersheldt admitted in the stipulation that he “lead [sic] and
directed at least five individuals who were involved in the
criminal activity,” and that he “personally used approximately
81,900 milligrams of the oxycodone” obtained during the
conspiracy. Finally, Houdersheldt admitted that he “distributed
approximately 10,500 milligrams of the oxycodone obtained as a
result of the conspiracy, to others, in part for profit.”
Because of the distribution of oxycodone to others, the parties
stipulated that that the applicable Guideline for establishing
the base offense level would be USSG § 2D1.1.
On appeal, Houdersheldt asserts that “[w]hile [he] was
a leader or organizer of the conspiracy [to obtain oxycodone],
he was not a leader or organizer of the drug selling operation,
the offense of stipulation.” He argues that this alleged error
produced an incorrect calculation of the advisory Guidelines
range, resulting in a procedurally unreasonable sentence.
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When reviewing a sentence on appeal, “[a]ppellate
courts are required to give due deference to the district
courts' application of the sentencing guidelines.” United
States v. Gormley, 201 F.3d 290, 293-94 (4th Cir. 2000). Where,
as here, the facts are undisputed and the issue turns primarily
on the legal interpretation of a term as used in the Guidelines,
the standard of review “moves closer to de novo review.” Id.;
see also United States v. Fullilove, 388 F.3d 104, 106 (4th Cir.
2004) (“Because the facts here are undisputed, the only question
before us is one of guidelines application, a question on which
our standard of review approaches de novo.”). *
Despite Houdersheldt’s contentions, the introductory
commentary to Chapter 3, Part B controls disposition of this
appeal. The commentary expressly states that “[t]he
determination of a defendant’s role in the offense is to be made
on the basis of all conduct within the scope of § 1B1.3
(Relevant Conduct), i.e., all conduct included under
§ 1B1.3(a)(1)-(4), and not solely on the basis of elements and
*
In United States v. Love, 134 F.3d 595 (4th Cir. 1998),
this court held that “a district court’s determination of a
defendant’s role in an offense” is reviewed for clear error,
citing United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.
1989). However, in both of those cases, the determination
turned on the application of the relevant facts. Here, the
facts are undisputed, and Houdersheldt expressly admits that he
was an organizer and leader of the conspiracy. The issue raised
in this appeal thus turns on a legal interpretation of § 3B1.1.
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acts cited in the count of conviction.” USSG ch. 3, pt. B,
intro. cmt. The term “offense” is defined in the application
notes to § 1B1.1 as “the offense of conviction and all relevant
conduct under § 1B1.3 (Relevant Conduct) unless a different
meaning is specified or is otherwise clear from the context.”
USSG § 1B1.1, cmt. n.1(H).
Here, although the parties stipulated to using § 2D1.1
to determine the base offense level, there was no stipulation
regarding enhancements under Chapter Three of the Guidelines.
As the plain language of the Guidelines states, the offense of
conviction, not the offense of stipulation, and all relevant
conduct that occurred during commission of the offense of
conviction are to be considered for the purpose of determining
whether an aggravating role enhancement is appropriate.
Houdersheldt conceded in the stipulation of facts that he was a
leader and organizer of the conspiracy, and again admitted that
in his sentencing memorandum to the district court and in his
brief on appeal. As we stated in United States v. Fells, a
defendant’s “role determination is to be based, not solely on
his role in the counts of conviction, but on his role in the
entirety of his relevant conduct.” 920 F.2d 1179, 1184 (4th
Cir. 1990). Houdersheldt himself expressly admitted that both
the offense of conviction and his relevant conduct relating to
that offense constituted leadership of the criminal activity.
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Accordingly, we affirm Houdersheldt’s sentence. 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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