                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-12-2007

USA v. Shepherd
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4601




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4601


                           UNITED STATES OF AMERICA

                                           v.

                                 LEROY SHEPHERD,

                                                       Appellant


                     Appeal from the United States District Court
                        for the Western District of Pennsylvania
                           (D.C. Criminal Action No. 02-246)
                   Chief District Judge: Honorable Gary L. Lancaster


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 9, 2007

                    Before: SLOVITER and AMBRO, Circuit Judges
                               POLLAK,* District Judge

                                (Filed: March 12, 2007)



                                       OPINION




   *
    Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
AMBRO, Circuit Judge

                                             I.

       Leroy Shepherd was found guilty by a jury on one count of conspiracy to distribute

five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. Shepherd was first

sentenced, in October 2004, to 210 months in prison under the then-mandatory Federal

Sentencing Guidelines, and he appealed. After the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005), we remanded Shepherd’s sentence to the District

Court for reconsideration in light of that case. On resentencing, the District Court again

sentenced Shepherd to a 210-month term, and he again appeals—this time contesting the

reasonableness of his sentence.1

                                             II.

       Shepherd makes two arguments as to why his sentence is unreasonable. First, he

claims that the District Court’s conclusion that between 50 and 100 kilograms of cocaine

were properly attributable to him is not supported with evidence bearing “sufficient

indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3.2 Second, he

asserts that the District Court, when determining his sentence, did not adequately consider



   1
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). United States v.
Grier, 475 F.3d 556, 561 (3d Cir. 2007) (en banc).
   2
    In finding the facts underlying the calculation of the Guidelines base offense level, a
district court must use the preponderance-of-the-evidence standard. Grier, 475 F.3d at
561–66. We review those findings for clear error. Id. at 568–70.

                                             2
the factors enumerated in 18 U.S.C. § 3553(a). See United States v. Cooper, 437 F.3d

324, 329–32 (3d Cir. 2006). We reject both arguments, setting out only those facts

necessary to our decision.

                                                 A.

       “Given the dramatic effect . . . estimates [of drug weight] have on the defendant’s

sentence, the sentencing court must carefully review the [G]overnment’s submissions to

ensure that its estimates are proven by a preponderance of the evidence.” United States v.

Collado, 975 F.2d 985, 998 (3d Cir. 1992). And though “[w]e recognize that in

calculating the amounts involved in drug transactions, some degree of estimation must be

permitted,” such calculations may not be “based on mere speculation.” Id. “[T]his

standard should be applied rigorously.” United States v. Miele, 989 F.2d 659, 664 (3d

Cir. 1993). This remains true even though the Guidelines are now only advisory, as they

are still “the ‘strong force’ that defines the starting point for all that follows[,] . . .

necessarily [affecting]—and often defin[ing]—the ending point.” Grier, 475 F.3d at 608

(McKee, J., dissenting).

       In this case, however, the District Court’s finding that Shepherd was responsible

for 50–100 kilograms of cocaine was based on testimony and information received from

no fewer than twelve people who were intimately involved in this cocaine distribution

conspiracy, were customers of Shepherd, or had observed various aspects of the




                                                 3
operation.3 It is true, as Shepherd argues, that one of these persons—Roy Mercer, the

conspiracy’s kingpin—may be of questionable credibility, given that his testimony

vacillated on how much cocaine Shepherd handled. The District Court, however, did not

adopt Mercer’s highest estimations, which ranged from 100 to 150 kilograms.

Moreover—and unlike the facts in Miele, cited by Shepherd for support—Mercer was not

the only source relied on in calculating the relevant amount of cocaine. See 989 F.2d at

665. Given the number of witnesses who testified about multiple trips to Shepherd’s

supplier (each involving 10–17 kilograms) or about the kilogram-size cocaine supply seen

when buying cocaine from him, as well as the amount of restitution ordered by the jury

($1.28 million)—which can only correspond to a substantial quantity of drugs—we have

little trouble concluding that the District Court’s finding is not clearly erroneous.

                                              B.

       Our reasonableness review pursuant to Booker requires that the record

“demonstrate [that] the trial court gave meaningful consideration to the § 3553(a)

factors.”4 Cooper, 437 F.3d at 329; see also United States v. Jackson, 467 F.3d 834,


   3
    Because the District Court did not specifically comment on which evidence led to its
findings on this issue, but did adopt the Presentence Investigation Report and sentenced
accordingly, we examine the analysis of the evidence set forth therein. See Miele, 989
F.2d at 663.
   4
    The factors set out in 18 U.S.C. § 3553(a) are:
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed—
              (A) to reflect the seriousness of the offense, to promote respect for

                                              4
840–42 (3d Cir. 2006). Shepherd contends that the District Court here failed to do so.

This argument, however, is unpersuasive. Contrary to Shepherd’s protestations, the

District Court—on four pages of record transcript—painstakingly went through the

§ 3553(a) factors, commenting on each and how it informed the Court’s decision. In

addition, though the Court imposed a within-Guideline sentence, nothing in the record

indicates that it treated the Guidelines as mandatory or accorded them undue weight. See

United States v. Gunter, 462 F.3d 237, 248–49 (ruling it error so to proceed). Given the

record here, we do not believe that Shepherd’s 210-month sentence is unreasonable.

                                       *   *   *   *   *

         For the reasons set forth above, we affirm the sentence imposed by the District

Court.




                  the law, and to provide just punishment for the offense;
                  (B) to afford adequate deterrence to criminal conduct;
                  (C) to protect the public from further crimes of the defendant; and
                  (D) to provide the defendant with needed educational or vocational
                  training, medical care, or other correctional treatment in the most
                  effective manner;
         (3) the kinds of sentences available;
         (4) the kinds of sentence and sentencing range established for—
                  (A) the applicable category of offense committed by the applicable
                  category of defendant as set forth in the guidelines . . . ;
         (5) any pertinent policy statement . . . issued by the Sentencing Commission
         . . . that . . . is in effect on the date the defendant is sentenced[;]
         (6) the need to avoid unwarranted sentence disparities among defendants
         with similar records who have been found guilty of similar conduct; and
         (7) the need to provide restitution to any victims of the offense.

                                               5
