                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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