United States v. Michael Shropshire ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3832
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Michael Shropshire, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 8, 2009
Filed: August 14, 2009
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Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH, District Judge.1
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PER CURIAM.
Michael Shropshire pleaded guilty to one count of conspiring to distribute
oxycodone, in violation of 21 U.S.C. § 846. The district court2 sentenced Shropshire
to 48 months' imprisonment. Shropshire appeals, asserting that the district court
imposed an unreasonable sentence because the nature and circumstances of the
offense and his history and characteristics favor a lower sentence. We affirm.
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
2
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
I. Background
Shropshire was indicted by a federal grand jury and charged with conspiracy
to distribute oxycodone, in violation of 21 U.S.C. § 846. After Shropshire entered his
guilty plea, the United States Probation Office prepared a presentence investigation
report (PSR).3 Shropshire filed objections to the PSR, contesting the drug quantity
calculation and arguing that he should receive a minor role adjustment.
The district court held an evidentiary hearing at which the government
presented the testimony of Investigator William Lambert of the Nebraska State Patrol
and Jerry Holley. Investigator Lambert, who was in charge of the investigation,
testified about Holley and Shropshire's involvement in the distribution of oxycodone.
In June 2004, law enforcement began investigating Holley and his distribution and
possession of oxycodone. Holley was arrested as a result of this investigation, was
federally indicted, and pleaded guilty to conspiracy to distribute oxycodone. He
cooperated with law enforcement after his arrest.
According to Investigator Lambert, prior to Holley's arrest, law enforcement
had conducted approximately 14 trash pulls of garbage at Holley's residence. Officers
recovered numerous prescription pill bottles, receipts from pharmacies, and index
cards from these trash pulls. Holley testified that he was acquiring oxycodone tablets
from a number of individuals and then reselling these tablets to others. He identified
the index cards taken from his trash as notations that he made of who he received
oxycodone pills from and the number of pills that he received.
Using the index cards, Holley identified Roger Bearfield, Shropshire's cousin,
as one of his oxycodone suppliers. Holley's association with Bearfield and Shropshire
3
Shropshire initially entered a plea of not guilty to the indictment, but he
subsequently withdrew this plea and entered a guilty plea.
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began when Holley started purchasing 40-milligram oxycodone tablets from
Shropshire. Holley would pick up Shropshire and drive him to a certain location
where Shropshire would then exit the vehicle, walk to an unknown location, and
return with 100 tablets of 40-milligram oxycodone tablets that he would sell to Holley.
This scenario occurred at least four times, with Shropshire progressively charging
Holley more on each occasion. After the fourth incident, Holley discovered that the
source of the oxycodone tablets was Bearfield. As a result, Holley began purchasing
the oxycodone tablets directly from Bearfield and cut Shropshire out as the
middleman for the deals.
At the evidentiary hearing, the government introduced into evidence
Shropshire's statement made after his arrest in which Shropshire admitted to setting
up at least three deals between Holley and Bearfield.
At the conclusion of evidence, the district court found that the quantity of
oxycodone involved in the four transactions between Shropshire and Holley was 100
tablets of 40-milligram strength oxycodone. This amount converted to 107.2
kilograms of marijuana under the Guidelines. The district court also overruled
Shropshire's objection to the PSR that he should receive a minor role adjustment. The
district court ultimately determined that Shropshire's Guidelines range was 57 to 71
months' imprisonment.
The district court then departed downward from the Guidelines range,
sentencing Shropshire to 48 months' imprisonment, stating:
I'm required to consider a number of things under the statutes and
I'll go ahead and list them.
I'm required to consider, under 18 U.S.C. Section 3553(a), the
seriousness of the offense, the need to promote respect for the law, to
provide for just punishment, to afford adequate deterrence, to protect the
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public, to provide needed educational and vocational training, medical
care or other correctional treatment, and I'm taking into account the
nature of the offense, the defendant's criminal history and characteristics,
sentences available, the advisory sentencing guideline range, the
defendant's acceptance of responsibility, and the plea agreement.
Mr. Shropshire does have a fairly extensive and fairly serious
criminal background. I do appreciate the fact that he has been working.
His work history is very sporadic and that's not surprising when someone
has had a problem with drug addictions.
Some of the folks that I sentenced in connection with this general
conspiracy have little or no criminal history. Some of these defendants
were people who had serious medical issues that caused them to be in
pain and they had obtained the prescriptions either legitimately or
initially legitimately and then, because of their need or desire for money,
ended up selling some of their medications to Mr. Holley.
And there's no doubt Mr. Holley is not someone who deserves our
sympathy. He helped a lot of people get into a lot of trouble. And Mr.
Shropshire was one of those people.
Mr. Shropshire's situation, again, is a little bit different in that he
brokered a transaction as opposed to simply selling his own pills and for
some reason I find the brokering of a transaction to reflect a little bit
more culpability.
But even considering all of those—those factors, and the statutory
factors, I do think that a guideline sentence is simply more than is
actually needed to fulfill all of the goals and objectives of the criminal
justice system.
There's no doubt that this defendant, Mr. Shropshire, could make
use of some more opportunities for rehabilitation. He has learned a trade,
and I appreciate the fact that he's been trying to make good use of that
trade.
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He's somebody who has taken many years to learn some of the
hard lessons that we hope to learn early in life and instead he's learning
them late in life.
Having said all of that, it is my job to try to determine what a
reasonable sentence is. I do give great deference to the guidelines. I have
great respect for the way that they're formulated and the purpose behind
them, but I will deviate somewhat from the guideline range.
I will impose a sentence of 48 months' incarceration to be
followed by three years of supervised release.
II. Discussion
On appeal, Shropshire argues that the district court imposed an unreasonable
sentence because the nature and circumstances of the offense and his history and
characteristics favor a lower sentence. According to Shropshire, concerns for just
punishment and deterrence can adequately be addressed by a lesser penalty.
Shropshire maintains that the district court improperly weighed the § 3553(a) factors,
resulting in a sentence that is greater than necessary to meet the federal sentencing
goals.
"We review a challenge to the reasonableness of a sentence for abuse of
discretion." United States v. Price, 542 F.3d 617, 622 (8th Cir. 2008) (internal
quotations and citation omitted). A sentence within the Guidelines range is presumed
reasonable, but such presumption "may be rebutted by reference to the statutory
sentencing factors found in 18 U.S.C. § 3553(a)." Id.Here, Shropshire "did not receive a Guidelines sentence but a sentence varying
below [his] Guidelines range by [nine] months." Id. (emphasis added). Shropshire
argues that his below-Guidelines sentence of 48 months' imprisonment is
unreasonable because (1) although he does have an extensive criminal history, in the
months following his arrest he has demonstrated his ability to turn his life around and
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maintain steady employment; (2) his role in the conspiracy was minimal when
compared to others who were involved; and (3) his unique combination of
characteristics indicate that a lower sentence would be "sufficient, but not greater than
necessary" to achieve federal sentencing goals. The record reflects that the district
court considered these arguments "but found that [they] w[ere] not sufficiently
compelling to warrant a greater variance, and we conclude that the district court acted
within its discretion in determining the extent of the variance." Id.III. Conclusion
Accordingly, we affirm the judgment of the district court.
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