United States v. Neil Shuttleworth , 535 F. App'x 282 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4841
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NEIL P. SHUTTLEWORTH,
Defendant - Appellant.
No. 12-4844
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NEIL P. SHUTTLEWORTH,
Defendant - Appellant.
No. 12-4845
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NEIL P. SHUTTLEWORTH,
Defendant - Appellant.
No. 12-4846
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NEIL P. SHUTTLEWORTH,
Defendant - Appellant.
No. 12-4848
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NEIL P. SHUTTLEWORTH,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Spartanburg. J. Michelle Childs, District
Judge. (7:12-cr-00242-JMC-1; 7:11-cr-00161-JMC-1; 7:11-cr-
00755-JMC-1; 7:11-cr-02070-JMC-1; 7:11-cr-02182-JMC-1)
Submitted: June 24, 2013 Decided: July 25, 2013
Before WYNN, DIAZ, and THACKER, Circuit Judges.
2
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant.
Elizabeth Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
Neil P. Shuttleworth pled guilty to five separate
indictments charging him with six counts of unarmed bank
robbery, in violation of 18 U.S.C. § 2113(a) (2006). His cases
were consolidated pursuant to Fed. R. Crim. P. 20. * At
sentencing, the district court granted Shuttleworth a downward
departure based on his assistance to authorities, and he
received a below-Guidelines sentence of 120 months’
imprisonment. On appeal, Shuttleworth’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal.
Shuttleworth has filed a pro se supplemental brief arguing that
(1) the district court erred in imposing a sentencing
enhancement based on Shuttleworth’s alleged threat of death to a
bank teller, and (2) the Government used information he shared
under his cooperation agreement to enhance his sentence, in
violation of U.S. Sentencing Guidelines Manual § 1B1.8(a)
(2011). Finding no error, we affirm.
We review Shuttleworth’s sentence for reasonableness,
applying a “deferential abuse-of-discretion standard.” Gall v.
*
Under Rule 20, transfer of prosecution is permitted from a
district where an indictment is pending to a district court
where a defendant is arrested upon consent by the defendant and
agreement by the United States attorneys.
4
United States, 552 U.S. 38, 51 (2007). We begin by reviewing
the sentence for significant procedural error, including
improper calculation of the Sentencing Guidelines range, failure
to consider sentencing factors under 18 U.S.C. § 3553(a) (2006),
sentencing based on clearly erroneous facts, or failure to
adequately explain the sentence imposed. Id. at 51. Once we
have determined that the sentence is free of significant
procedural error, we must consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. If the
sentence is within the appropriate Guidelines range, we apply a
presumption on appeal that the sentence is reasonable. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
Such a presumption is rebutted only when the defendant
demonstrates “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
Shuttleworth first contends that the district court
improperly imposed a two-level enhancement based on his alleged
death threat to one of the bank tellers. In assessing the
district court’s application of the Guidelines, this court
reviews the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. Layton, 564
5
F.3d 330, 334 (4th Cir. 2009). Generally, the test is an
objective one—whether the defendant’s statement would “instill a
fear of death in a reasonable victim, not the reaction of the
particular teller[.]” United States v. Jennings, 439 F.3d 604,
613 (9th Cir. 2006); see also United States v. Franks, 183 F.3d
335, 337-38 (4th Cir. 1999); United States v. Gibson, 155 F.3d
844, 846 (7th Cir. 1998). We conclude the enhancement was
appropriately applied. To the extent Shuttleworth argues
counsel was ineffective in this regard, ineffectiveness does not
conclusively appear on the record. United States v. Powell, 680
F.3d 350, 359 (4th Cir. 2012).
Shuttleworth also argues in his pro se supplemental
brief that the Government used information he shared under his
cooperation agreement to enhance his sentence, in violation of
USSG § 1B1.8(a). Because Shuttleworth did not preserve this
issue in the district court, we review for plain error. United
States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997). We
summarily dismiss this claim, and the attendant ineffective
assistance of counsel claim, because Shuttleworth had neither a
plea agreement nor a cooperation agreement in these cases.
Our review of the record indicates no procedural error
in the imposition of Shuttleworth’s sentence. Further, the
district court adequately explained the basis for Shuttleworth’s
below-Guidelines range sentence based on the goals of 18 U.S.C.
6
§ 3553(a), and we find nothing to rebut the presumption of
substantive reasonableness.
In accordance with Anders, we have reviewed the entire
record in each case and find no meritorious issues for appeal.
We therefore affirm Shuttleworth’s convictions and sentence.
This court requires counsel to inform Shuttleworth, in writing,
of his right to petition the Supreme Court of the United States
for further review. If Shuttleworth requests that a petition be
filed but counsel believes such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Shuttleworth. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid in
the decisional process.
AFFIRMED
7