United States v. Bishop

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 5, 2008
No. 07-10792
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SHONTA MICHELLE BISHOP
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-9-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Shonta Michelle Bishop appeals her sentence following her guilty-plea
conviction for bank robbery under 18 U.S.C. § 2113. Bishop’s guidelines range
of imprisonment was 57-71 months, and the district court sentenced her to 71
months of imprisonment. Bishop contends that the sentence imposed is
unreasonable because of the “overwhelming” mitigating evidence in her case.
She also argues that her sentence is unreasonable because the district court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-10792
ordered it to run consecutively to any subsequently imposed state sentences for
other unadjudicated state charges.
“[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see also Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Because
Bishop did not object to the district court’s sentence as unreasonable, we review
for plain error. United States v. Peltier, 505 F.3d 389, 390-93 (5th Cir. 2007),
petition for cert. filed (Jan. 22, 2008) (No. 07-8978).
Bishop does not allege any procedural error by the district court during
sentencing. She contends that her within-guidelines sentence of 71 months was
substantively unreasonable in light of her below normal IQ, the coercion applied
by her boyfriend, the physical and sexual abuse she suffered in the past, her
drug use, and the overrepresentation of her criminal history score. However,
once the district court decided to impose a sentence of imprisonment, the record
reflects that it considered Bishop’s needs for education, substance abuse
treatment, and mental health treatment while incarcerated in determining the
length of her sentence. See United States v. Giddings, 37 F.3d 1091, 1096 & n.17
(5th Cir. 1994) (noting that legislative history indicates that a statutory
prohibition in 18 U.S.C. § 3582 against considering rehabilitative needs “relates
to the decision of whether to impose imprisonment, not to the length of the term
of imprisonment”). A district court is required to consider “the history and
characteristics of the defendant” and the need for the sentence to provide the
defendant with “needed educational or vocational training, medical care, or other
correctional treatment.” See 18 U.S.C. § 3553(a)(1), (a)(2)(D).
Bishop also argues that the imposition of a consecutive sentence was
unreasonable. As Bishop did not object to the imposition of the consecutive
sentence in the district court, we review for plain error. See United States v.
Quintana-Gomez, 521 F.3d 495, 496 (5th Cir. 2008); Peltier, 505 F.3d at 392. A
district court’s authority to impose a consecutive sentence includes the authority
2
No. 07-10792
to order that the sentence run consecutively to a not-yet-imposed state sentence.
See United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated
on other grounds by United States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006).
The consecutive nature of a sentence is reviewed for unreasonableness and a
consecutive sentence imposed within the parameters of the Sentencing
Guidelines is presumptively reasonable. See Candia, 454 F.3d at 473. As
discussed above, the district court’s statements at sentencing suggest it chose a
sentence, including the decision to make the sentence consecutive, to provide
Bishop with the greatest opportunity for education, substance abuse treatment,
and mental health treatment while she is incarcerated.
Bishop has not overcome the presumption that her within-guidelines
sentence was reasonable, see Alonzo, 435 F.3d at 554; see also Rita, 127 S. Ct. at
2468-69, and she has not shown that the sentence imposed by the district court
constituted plain error. See Peltier, 505 F.3d at 392.
AFFIRMED.
3