                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4887


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RICARDO JOHN LISPSCOMB,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cr-00448-CCE-9)


Submitted:   September 7, 2012           Decided:   September 12, 2012


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert A. Broadie, CAROLINA LEGAL SOLUTIONS, High Point, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ricardo John Lispscomb appeals the 120-month sentence

imposed   after    he   pleaded       guilty     to        conspiracy      to     distribute

cocaine    base.        Lispscomb       argues         that       the     district         court

procedurally erred in failing to give sufficient reasoning in

denying    an    objection      to     the     presentence           report         (PSR)     at

sentencing.        He   also       contends     that         he     withdrew        from     the

conspiracy      while   he    was    serving       a       period    of    probation         and

therefore it was procedural error to add two criminal history

points    for   committing      the    offense         while       serving      a    criminal

justice sentence.       Finding no error, we affirm.

            Lispscomb        pleaded     guilty            to     count     one      of      the

indictment      against      him      charging         him        with    conspiracy          to

distribute 280 grams or more of cocaine base from January 2007

to November 30, 2010.          The minimum sentence was ten years.                          The

PSR determined that Lispscomb did not qualify for the safety

valve provision because he had four criminal history points.

One point was assessed at paragraph 71 for possession of drug

paraphernalia,      which      resulted       in       a     six-month       sentence        of

unsupervised probation.            One point was assessed in paragraph 72

for   misdemeanor       possession        of       drug         paraphernalia,             which

Lispscomb pleaded guilty to and received a prayer for judgment

continued.       Because     the     conviction        in       paragraph    71      occurred

during the conspiracy, the PSR assessed two additional criminal

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history points under United States Sentencing Guidelines Manual

§ 4A1.1(d) (2010).

             At sentencing, the district court struck paragraph 72

from   the   PSR.       The    court       still   found    that     because    of   the

conviction in paragraph 71, the two additional criminal history

points   were   valid     and       the    total   number    of    criminal    history

points was three, category II.               Counsel for the defendant argued

that the Government had to prove that Lispscomb participated in

the conspiracy while he was on unsupervised probation, which was

from March to September 2009.               Although Lispscomb argued that he

was    not   involved     in    the        conspiracy      while   on    unsupervised

release,     counsel    contended,          and    stated    several     times,      that

“[w]e’re not arguing that he withdrew from this conspiracy.”

Counsel further stated, “this is not a withdrawal issue, it is

an issue of whether he committed any part of the instant offense

while on probation during that six month period of time.”                         If he

did    not   participate       in    the    conspiracy      during      his   probation

period, the additional two criminal history points under USSG

§ 4A1.1(d) could not be included.                   The Government argued that

once a conspiracy is shown to exist, the defendant is deemed

part of the conspiracy unless he affirmatively communicates his

withdrawal.

             With a total offense level of 29 and criminal history

category II, the Sentencing Guidelines range was the statutory

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minimum.       The district court denied Lispscomb’s objection to the

additional two criminal history points attributed because the

conspiracy offense occurred during Lispscomb’s probation.                    The

court stated, “while I understand your argument on Paragraph 75

and the probation, I don’t think it’s correct so I’m going to

leave Paragraph 75 as part of the presentence report and leave

those    two    points   there.”     The    court     imposed   the    120-month

minimum sentence.

               We review a sentence imposed by the district court for

reasonableness       “under     a   deferential       abuse     of    discretion

standard.”       Gall v. United States, 552 U.S. 38, 41, 51 (2007).

This    review     entails     appellate    consideration       of    both   the

procedural and substantive reasonableness of the sentence.                   Id.

at 51.      Lispscomb contends that his sentence is procedurally

unreasonable.

               In determining procedural reasonableness, this court

considers      whether   the   district    court    properly    calculated   the

defendant’s       Guidelines     range,     treated     the     Guidelines    as

mandatory, considered the 18 U.S.C.A. § 3553(a) (West 2006 &

Supp. 2012) sentencing factors, selected a sentence based on

clearly erroneous facts, or failed to explain sufficiently the

selected sentence.       Id. at 49-51.

               On appeal, Lispscomb argues that the district court

procedurally erred in failing to give sufficient reasoning in

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denying the objection.              Rule 32(i)(3)(B) of the Federal Rules of

Criminal Procedure requires a district court “-for any disputed

portion of the presentence report or other controverted matter-

[to]    rule     on    the        dispute    or    determine    that     a    ruling   is

unnecessary          either        because     the     matter   will         not   affect

sentencing, or because the court will not consider the matter in

sentencing.”          The purpose of the rule “is to ensure that a

record is made as to how the district court ruled on any alleged

inaccuracy in the PSR.”               United States v. Walker, 29 F.3d 908,

911 (4th Cir. 1994).                 We conclude that the district court’s

ruling was sufficient under Rule 32(i)(3)(B).

               Lispscomb’s theory below is that the Government had to

prove that he committed an overt act while he was on probation.

On appeal, he has transformed this issue into an argument that

he withdrew from the conspiracy and the distribution in 2010 was

part of a different conspiracy.                      He argues in his reply brief

that     his     waiver      at     the     sentencing    hearing      was    merely   an

indication that he was not contesting his participation in the

conspiracy as a whole, so that he would not lose acceptance of

responsibility points.              He suggests that counsel’s comments that

Lispscomb was not arguing withdrawal was only recognition that

he     did     not    make    a     verbal     statement    withdrawing        from    the

conspiracy.



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             After reviewing the sentencing transcript, it appears

that Lispscomb explicitly waived the withdrawal argument at the

sentencing     hearing,    affirmatively       stating        that     he    was       not

arguing abandonment or withdrawal, just that he was not active

in the conspiracy from March to October 2009.                       The Defendant’s

explicit waiver waives any potential issue that may be raised on

appeal.     See United States v. David, 83 F.3d 638, 641 n.1 (4th

Cir. 1996).

             However,     even       considering   the        abandonment      issue,

Lispscomb did not meet his burden to prove that he withdrew.

Withdrawal from a conspiracy “requires the defendant to take

affirmative     actions     inconsistent       with      the        object   of        the

conspiracy and communicate his intent to withdraw in a manner

likely to reach his accomplices.”              United States v. Cardwell,

433 F.3d 378, 391 (4th Cir. 2005) (citation omitted); see United

States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).                      Once it has

been     established     that    a     defendant   has    participated            in    a

conspiracy,     the     defendant’s      membership      in     a    conspiracy        is

presumed to continue until he withdraws from the conspiracy by

affirmative action.        Withdrawal must be shown by evidence that

the defendant acted to defeat or disavow the purposes of the

conspiracy.     United States v. West, 877 F.2d 281, 289 (4th Cir.

1989).



                                          6
             The     evidence          shows       that       Lispscomb      joined        the

conspiracy    in     2007       and    distributed        drugs    in     2007.      He    was

inactive until 2010, when he again distributed drugs.                              Although

he may not have committed an overt act furthering the conspiracy

during his period of probation, each member of the conspiracy is

not    required     to    commit      an     overt      act   to   be    found    guilty    of

conspiracy so long as at least one member commits an act.                                  See

Cardwell,     433        F.3d    at     391.            Lispscomb’s       relocation       and

employment in 2009 does not constitute affirmative action to

defeat or disavow the conspiracy, particularly in light of his

return to it.            See West, 877 F.2d at 289.                     We determine that

there   is   insufficient         evidence         to    demonstrate      that    Lispscomb

withdrew from the conspiracy prior to his probation in 2009.

             We therefore affirm the judgment.                          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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