                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4448




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-4448


                           UNITED STATES OF AMERICA,

                                                    Appellee

                                           v.

                                  JAMES SHEDRICK

                                                    Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (Crim. No. CR 02-532-1)
                     Honorable Legrome D. Davis, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                 December 3, 2008

                BEFORE: AMBRO and GREENBERG, Circuit Judges,
                        and RODRIGUEZ,* District Judge

                              (Filed: December 19, 2008)


                                       OPINION




   *
    The Honorable Joseph H. Rodriguez, Judge of the United States District Court for the
District of New Jersey, sitting by designation.
RODRIGUEZ, District Judge:

       James Shedrick appeals from his sentence imposed after a plea of guilty to one

count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §

922(g)(1). He was sentenced to 96 months imprisonment, a term of supervised release of

three years, a fine of $7,500.00, and a special assessment of $100.00. Shedrick contends

that the District Court abused its discretion by granting an upward departure of eight

offense levels, and that it imposed an unreasonable sentence. We disagree and will affirm

the sentence imposed.

                                   I. JURISDICTION

       This Court has jurisdiction pursuant to 28 U.S.C. § 1291, as this matter comes

before the Court due to a timely appeal from the order of judgment in a criminal case

entered on November 13, 2007. Additionally, this Court has jurisdiction pursuant to 18

U.S.C. § 3742 to review the sentence imposed.

                     II. FACTS AND PROCEDURAL HISTORY

       The underlying conduct that gave rise to the initial indictment occurred on July 11,

2002. On that date, police officers arrived at 64th Street and Greenway Avenue in

Philadelphia, PA, in response to 911 emergency calls reporting a man with a gun. Shortly

thereafter, Officer Pembrook spotted Appellant Shedrick standing in the middle of the

street with a large silver revolver. He radioed for backup, and was quickly joined by

Officers Mason, Rutter, and Gallen-Ruiz. All officers then instructed Appellant to drop



                                             2
his weapon. Appellant chose not cooperate; he unsuccessfully attempted to fire his

revolver into the air three times. Appellant then opened the cylinder of the revolver, and

six empty shell casings dropped to the ground. While Appellant checked his weapon, the

officers tackled him and placed him under arrest.

       Before moving on, it is important to note that Appellant discharged his firearm

prior to the officers’ arrival. Two shots hit a moving van with two passengers inside.

The first shot hit the top of the hood, and the second hit the middle of the windshield– just

missing driver Lay Nguyen and his passenger-employee Patricia Edwards. (App. 45.)

Neither of the passengers sustained any injuries.

       This case originally came before the Eastern District of Pennsylvania, when on

August 27, 2002, the grand jury returned an indictment for Appellant James Shedrick.

Appellant was charged with one count of possession of a firearm by a felon pursuant to

18 U.S.C. § 922(g)(1). On November 8, 2002, Appellant pleaded guilty to that charge.

He stipulated to the following facts: (1) possession of a Smith & Wesson .357 magnum

caliber revolver; (2) previous conviction of a crime punishable by imprisonment for more

than one year; and (3) the relevant firearm affected interstate commerce as it was

manufactured outside Pennsylvania. (Suppl. App. 3.) Appellant further stipulated that

“the Court may make factual and legal determinations that differ from these stipulations

and that may result in an increase or decrease in the Sentencing Guidelines range and the

sentence that may be imposed.” (Id.)



                                             3
       The plea acknowledged that Appellant’s maximum statutory sentence under §

922(g)(1) could be as much as ten years’ imprisonment, including three years’ supervised

release, a $250,000.00 fine, and a $100.00 special assessment. (Id. at 2.) Notably, the

parties agreed that each was “free to argue the applicability of any other provision of the

Sentencing Guidelines, including offense conduct, offense characteristics, criminal

history, adjustments and departures...” (Id. at 3.) Finally, relevant portions of the plea

agreement also included the following waiver provision:

       10.    In exchange for the undertakings made by the government in entering
              this plea agreement, the defendant voluntarily and expressly waives all
              rights to appeal or collaterally attack the defendant’s conviction,
              sentence, or any other matter relating to this prosecution, whether such
              a right to appeal or collateral attack arises under 18 U.S.C. 3742, 28
              U.S.C. 1291, 28 U.S.C. 2255, or any other provision of law.

              (A)    Notwithstanding the waiver provision above, if the government
                     appeals from the sentence, then the defendant may file a direct
                     appeal of his sentence.

              (B)    If the government does not appeal, then notwithstanding the
                     waiver provision set forth in paragraph 10 above, the defendant
                     may file a direct appeal but may raise only claims that:

                     (i)    if the sentence exceeded the statutory maximum; or
                     (ii)   if the judge erroneously departed upward from the
                            otherwise applicable sentencing guideline range.

(Suppl. App. 4.) During an extensive plea colloquy with Judge Davis, Appellant confirmed

in open court that he fully understood the terms of the plea agreement. (See App. 21-35.)

       Two weeks prior to the sentencing hearing, the Government filed a sentencing

memorandum containing two recommendations: (1) Appellant should be subject to a

                                              4
four-level enhancement for possessing a firearm in connection with a felony offense

(drug dealing); and (2) the District Court should depart upward eight levels from the

Guidelines range because Appellant fired the weapon during the commission of his

offense (shooting at the passenger van). Consistent with these recommendations, the

applicable Guidelines’ range became 87 to 108 months. (Suppl. App. 18.) Appellant

objected to these recommendations, instead contending that he was subject to a 46 to 57

month range.1 (App. 72-73.)

       The sentencing hearing was thereafter held on February 21, 2003. The District

Court heard testimony from Lay Nguyen (the driver of the van), Aki Brickhouse (the man

responsible for transferring possession of the gun to Appellant’s brother), Detective

Missimer (the detective who interviewed Appellant’s brother– Tarik Robinson), Rachel

Jacobs (Appellant’s mother), and Appellant himself, who made a statement from

counsel’s table.

       The Court ultimately accepted as credible the testimony from Brickhouse that

Appellant carried the weapon in connection with “hustling”, that is, dealing cocaine on

the streets. (App. 56, 91.) The Court also accepted as credible the testimony of Nguyen,

who testified that Appellant was the person who shot twice at her van. (App. 51, 93.) In



   1
        The P.S.R. calculated Appellant’s base offense level at 20. Due to Appellant’s
prior felony conviction for a controlled substance offense, the calculation was subject to a
four-level enhancement under U.S.S.G. § 2K2.1(b)(5). The resultant 24 was then subject
to a three-level downward adjustment for acceptance of responsibility under U.S.S.G. §
3E1.1. These adjustments finally resulted in a combined point total of 21. (App. 15-16.)

                                             5
fact, Judge Davis recalled Nguyen to directly answer questions so as to verify that

Appellant was properly identified.2 As Judge Davis told Nguyen, “I’m asking you these

questions because it’s very important to me as a judge that I know what the facts are and

that I do the right thing.” (App. 87.)

       The District Court ultimately applied the four-level enhancement associated with

carrying the weapon in connection with dealing drugs and the eight-level upward

departure for shooting at the passenger van. (Suppl. App. 18.) The Court then adjusted

downward three levels for Appellant’s acceptance of responsibility, which brought the

total to 29. (App. 94.) With the appropriate sentencing range at 87 to 108 months, the

Court imposed a sentence of 96 months, including three years’ supervised release, a

$7,500 fine, and the mandatory $100 special assessment. (Id. at 95-96.)

       Shedrick received court-appointed counsel for purposes of appeal. Six months

after the sentencing, counsel filed a motion for enlargement of time to enter a notice of

appeal nunc pro tunc. (Suppl. App. p. 18.) That motion was denied as untimely on

August 27, 2003, and we dismissed the appeal as untimely on November 25, 2003. (Id. at




   2
        There was one discrepancy in Nguyen’s testimony. Appellant was arrested
wearing a black t-shirt. According to Nguyen, the shooter wore a white t-shirt. When
Nguyen was confronted with that discrepancy, he answered that he was focused on the
gun more than the particular clothes of the defendant. Significantly, Nguyen testified that
the gun was chrome, and the Smith & Wesson seized from Appellant was indeed chrome.
Additionally, because the police station Nguyen went to after the shooting was only two
blocks away, Nguyen returned to the scene quickly and witnessed Appellant being tackled
in the “same place” where the shooting had occurred. (App. 88.)

                                             6
19.) Appellant thereafter (through counsel) filed a § 2255 habeas petition for ineffective

assistance of counsel, which again was denied by the District Court. A pro se petition for

a certificate of appealability was then filed before this Court, which was granted for two

issues: “whether counsel was ineffective for failing to advise [Appellant] of a possible

upward departure at sentencing; and whether counsel was ineffective for filing an

untimely appeal.” (Id. at 19.)

       In a precedential opinion, see, generally, United States v. Shedrick, 493 F.3d 292

(3d Cir. 2006), we answered in the negative as to the first issue, but found in favor of

Appellant as to the second. We also stated that the only issue preserved for appeal was

whether the eight-level upward departure was erroneous. Id. at 303. Because that issue

was extensively briefed, this Court decided it on the merits, finding that the District Court

did not abuse its discretion in imposing the sentence. (Suppl. App. 31-33.) Appellant

then filed a motion for rehearing, contending that it was improper for this Court to rule on

that issue. We agreed, noting that the usual rule of thumb on a § 2255 case is to remand

to the District Court so as to allow Appellant to be in the same position as if he had

effective counsel. See Shedrick, supra, at 303. Thus, we vacated that portion of the

opinion and remanded

       for re-entry of the initial sentence so that there can be a timely appeal... This
       ... will give [Appellant] the opportunity properly to raise the issue that he had
       previously expressed a desire for this Court to review and which he explicitly
       preserved in his plea agreement and colloquy: the propriety of his upward
       departure.



                                           7
Id.

       On remand, the District Court followed our directive, imposing the same sentence

it deemed appropriate at the February 2003 sentencing hearing. This sentence was re-

imposed notwithstanding Appellant’s contention that the District Court should conduct a

de novo sentencing hearing consistent with the demands of United States v. Booker, 543

U.S. 220 (2005), decided two years after Appellant’s initial sentencing, and

notwithstanding an extensive colloquy between Judge Davis and Appellant regarding

Appellant’s certificates of merit attained in prison. Judge Davis explained that he was

bound by our directive, and that, in any event, he would impose the same sentence even if

Booker governed the case. (App. 121-22.)

                            III. STANDARD OF REVIEW

       The standard for reviewing whether an upward departure was permissibly granted

under the sentencing guidelines is plenary. See United States v. Himler, 355 F.3d 735,

741 (3d Cir. 2004). This Court then reviews the reasonableness of the departure for an

abuse of discretion. See United States v. Yeaman, 194 F.3d 442, 456 (3d Cir. 1999).

Factual determinations regarding sentencing are reviewed for clear error. United States v.

Beckett, 208 F.3d 140, 148 (3d Cir. 2000). Finally, the standard for reviewing whether an

appellate waiver is enforceable is de novo. See United States v. Jackson, 523 F.3d 234,

237 (3d Cir. 2008).




                                            8
                                    IV. DISCUSSION

A. The Upward Departure

       Appellant first contends that the evidence was insufficient to warrant an upward

departure in this case. In Appellant’s words, “[t]he evidence presented at sentencing was

far from overwhelming.” (Appellant Br., p. 13.) (emphasis added). Pointedly, this Circuit

has never required such a high burden of proof at sentencing. Indeed, we have held that a

district court applies the preponderance of the evidence standard when determining facts

relevant to sentencing. See United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en

banc); and United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). Those factual

determinations are then reviewed using the deferential clear error standard. Rita v.

United States, 551 U.S. ---, 127 S.Ct. 2456, 2471 (2007).

       Here, the District Court did not commit clear error when it concluded that

Appellant fired the gun at the passenger van. While there may have been a discrepancy

with respect to the shirt Appellant wore at the relevant time, that discrepancy was

resolved by the Court after recalling Nguyen to testify. (App. 93-94.) The following

colloquy between the Court and Nguyen took place:

       Court:        [Y]ou took them back to where you were being shot at?

       Witness:      Yes.

       Court:        Okay. And that’s when you saw the man that they tackled, right?

       Witness:      Yes.



                                             9
       Court:        Okay. So the man that they tackled, where was he standing in
                     relation to where the man who shot at you was standing?

       Witness:      Same place.

       Court:        Same place?

       Witness:      Yes.

When this colloquy is juxtaposed with the facts that: (1) the police station was only a two

blocks from the scene of the shooting, (2) Appellant’s gun had six empty shell casings

when he was arrested, and (3) the Court found Nguyen’s testimony credible, it is evident

that the Court’s finding that Appellant fired the gun was not clearly erroneous.

       Appellant further contends that “[a] jury finding was necessary to determine”

whether Appellant shot at the van. The question of whether a jury finding was necessary

to determine the factual basis for Appellant’s sentencing was answered by the Supreme

Court in United States v. Booker, 543 U.S. 220 (2005). In that case, the Supreme Court

held in part that the Sixth Amendment right to trial by jury is not implicated during

sentencing unless the sentence exceeds the statutory maximum. Id. at 259. Whereas here,

the statutory maximum for Appellant’s offense was ten years and the range recommended

was 87 to 108 months, Appellant was not entitled to a jury finding at sentencing.

       Appellant’s next contention is that, even if it is true that he fired the gun at the

moving passenger van, that fact alone does not make this case sufficiently “special or

“unusual” to warrant an upward departure of eight levels. In making this argument,

Appellant does himself no favor by citing two key provisions of the U.S. Sentencing

                                              10
Guidelines. First, Appellant cites § 5K2.0, and states that “a district court may grant an

upward departure where circumstances exist that the guidelines do not adequately take

into consideration.” (Appellant Br., p. 15.) Second, Appellant cites U.S.S.G. § 5k2.6

which provides:

       If a weapon or dangerous instrumentality was used or possessed in the
       commission of the offense[,] the court may increase the sentence above the
       authorized guidelines range. The extent of the increase ordinarily should
       depend on the dangerousness of the weapon, the manner in which it was used,
       and the extent to which its use endangered others. The discharge of a firearm
       might warrant a substantial sentence increase.

(Appellant Br., p. 16.) Appellant then asserts, “[a]lthough a firearm is a dangerous

weapon, its dangerousness is taken into account under 18 U.S.C. 922(g)(1), felon in

possession of a firearm.” (Appellant Br., p. 16.) Appellant disregards the finding that he

discharged the firearm twice, and instead contends that the weapon was used only “in

conjunction with a drug crime”, which already provided a four-level sentence

enhancement. (Id.) When Appellant does address the firearm discharge, he asserts that

“no one was injured” and that “no one was endangered”. (App. 16-17.) Appellant is

correct that neither occupant of the van was injured, but it flies in the face of common

sense to say that “no one was endangered” when Appellant fired twice at a moving van,

once hitting the hood, and once hitting the windshield. Indeed, this situation is not one

typically contemplated by the guidelines. In such a case, the District Court was

authorized to impose “a substantial sentence increase” pursuant to U.S.S.G. § 5K2.6.

       Finally, Appellant contends that the extent of the departure was unreasonable.

                                             11
(Appellant Br., p. 17.) He specifically argues that an eight-level departure was “too

large”, and that the District Court improperly calculated the departure. (Id.) If a District

Court “finds that there exists an aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration ... by the guidelines”, then the court may

depart from the “relevant guideline range”.3 See United States v. Queensborough, 227

F.3d 149, (3d Cir. 2000) (citing United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.

1990)).

       Here, the Government analogized Appellant’s conduct to attempted murder, and

recommended an offense level of 33. (App. 91.) At the sentencing hearing, the

Government remarked that the same offense level would result if the Court added four

levels for each victim who was assaulted when Appellant fired twice at the van. (App.

91-92.) We have held that, where an appropriate circumstance exists, reasoning by

analogy “to the guidelines ... is a useful and appropriate tool for determining what offense

level a defendant’s conduct most closely approximates.” Queensborough, 227 F.3d at

160. Because Appellant fired his weapon twice at a moving vehicle with two passengers,

his conduct does approximate that of attempted murder. Murder is defined as “the



   3
    Parties are entitled reasonable notice as to the grounds for departure. Burns v. United
States, 501 U.S. 129, 138-39 (1991). As the U.S. Probation Officer informed the District
Court that it “could upwardly depart because [Appellant] discharged a firearm during the
offense striking a vehicle containing two passengers”, see P.S.R., Part.E, ¶ 63, and the
Government submitted a sentencing memorandum to the Court and Appellant which
expressly called for an upward departure of eight levels, (Appellee Br., p. 9.), notice was
properly given.

                                             12
unlawful killing of a human being with malice aforethought.” 18 U.S.C. § 1111(a).

Malice aforethought “is not synonymous with premeditation ... but may also be inferred

from circumstances which show a wanton and depraved spirit, a mind bent on evil

mischief without regard to its consequences.” Gov’t of Virgin Islands v. Lake, 362 F.2d

770, 774 (3d Cir. 1966). Here, Appellant’s conduct epitomizes a “wanton and depraved

spirit.” Moreover, as Judge Davis told Appellant at the re-sentencing, “when you fire two

bullets, that becomes an element of premeditation.” (App. 118.)

       Appellant refutes the analogy to attempted murder, instead contending that a four-

level upward departure consistent with aggravated assault is the proper cross-reference.

(Appellant Br., p. 18.) He cites United States v. Corbin, 998 F.2d 1377 (7th Cir. 1993),

and notes that the Seventh Circuit affirmed a sentence based on a violation of

§ 922(g)(1)– which was then cross-referenced with the applicable guideline for

aggravated assault. (Id.) Appellant’s reliance on that case is misguided, however,

because the facts in Corbin are inapposite to the present case. In Corbin, the appellant

never fired his weapon. He did press it against his ex-girlfriend’s head, though, which

subsequently caused a “round reddened spot”. Corbin, 998 F.2d at 1380. Such an act is

plainly consistent with horn book aggravated assault, as the appellant caused bodily injury

with a deadly weapon. W AYNE R. L AF AVE & A USTIN W. S COTT, J R., C RIMINAL L AW 608

(1972).

By contrast, Appellant in this case actually discharged his weapon twice, each time



                                            13
aiming at a moving van with two passengers, and each time hitting the van. As such, the

two cases are inapposite. In any event, it cannot be said that the District Court abused its

discretion when it departed upward eight levels. This conclusion is buttressed by that

notion that “[t]he sentencing judge has access to, and greater familiarity with, the

individual case and the individual defendant before him than the Commission or the

appeals court.” Rita v. United States, 551 U.S. ---, 127 S.Ct. 2456, 2469 (2007).

B. Reasonableness of the Sentence

       The second issue presently before this Court is whether Appellant’s sentence was

unreasonable. Because we hold that Appellant waived this ground for appeal in his plea

agreement, we need not reach the merits of this argument. As noted above, Appellant’s

plea agreement contained the following relevant terms:

              (A)    Notwithstanding the waiver provision above, if the government
                     appeals from the sentence, then the defendant may file a direct
                     appeal of his sentence.

              (B)    If the government does not appeal, then ... the defendant may
                     file a direct appeal but may raise only claims that:

                     (i)    if the sentence exceeded the statutory maximum; or
                     (ii)   if the judge erroneously departed upward from the
                            otherwise applicable sentencing guideline range.

Here, the District Court did not exceed the statutory maximum (ten years) when it sentenced

Appellant to 96 months, nor did the Government appeal the sentence. Appellant’s only valid

ground for appeal, therefore, is whether the District Court erroneously departed upward from

the otherwise applicable sentencing guideline range, pursuant to 10(B)(ii) of the plea

                                             14
agreement. We addressed that argument above, and concluded that the District Court did not

erroneously depart upward.

       Waivers of appeals are generally “permissible and enforceable.” See United States

v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).4 When waivers of appeal are entered into

“knowingly and voluntarily,” they are presumed valid “unless they work a miscarriage of

justice.” See United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005) (emphasis

added). Lockett is similar to the case before us. The appellant in that case pleaded guilty

and was sentenced pre-Booker. Id. He thereafter filed an appeal, challenging his

sentence post-Booker. Id. Specifically, he argued that the subsequent development in the

law invalidated the appeal waiver contained in his plea agreement, thereby giving him the

right to appeal his sentence. Id. This Circuit rejected that argument, holding that “where

a criminal defendant has voluntarily and knowingly entered into a plea agreement in

which he or she waives the right to appeal, the defendant is not entitled to resentencing in

light of Booker.” Id. Here, Appellant waived his right to appeal and was sentenced pre-

Booker. As a result, he is not entitled to a de novo sentencing hearing in light of Booker,



   4
       In Khattak, we noted that ten other Courts of Appeals have held waivers of appeal
generally permissible and enforceable. Id. at 560-61 (citing United States v. Teeter, 257
F.3d 14, 21 (1st Cir. 2001); United States v. Fisher, 232 F.3d 301, 303 (2d Cir. 2000);
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000); United States v. Branam, 231
F.3d 931, 932 (5th Cir. 2000); United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.
2001); United States v. Jemison, 237 F.3d 911, 916-18 (7th Cir. 2000); United States v.
Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000); United States v. Nguyen, 235 F.3d
1179, 1184 (9th Cir. 2000); United States v. Rubio, 231 F.3d 709, 711 (10th Cir. 2000);
United States v. Howle, 166 F.3d 1166, 1168-69 (11th Cir. 1999)).

                                             15
nor can he now challenge his sentence as unreasonable.

       For whatever reason, Appellant does not address this waiver issue in his brief. As

a result, there is no dispute as to whether enforcement of the waiver results in a

miscarriage of justice. The Government contends that it would not, and cites our decision

in United States v. Jackson, 523 F.3d 234, 244 (3d Cir. 2008) to substantiate its

contention. Like the situation here, the appellant’s appeal in that case relied wholly on

the claim that the underlying sentence was unreasonable. Id. We stated:

       In light of Gall’s deferential abuse-of-discretion standard for reviewing
       sentence appeals, it will be a rare and unusual situation when claims of an
       unreasonable sentence, standing alone, will be sufficient to invalidate a waiver
       because of a miscarriage of justice.

Id. (citing Gall v. United States, supra, at 600).

       Even though Appellant does not address the waiver argument, our reasoning in

Jackson applies squarely to the case before the Court. Appellant stated that he understood

the terms of the plea agreement, and he has alleged nothing more on this second ground

than mere unreasonableness. As for whether this case constitutes one of the “rare and

unusual” situations where the claim of unreasonableness alone could invalidate a waiver,

we hold that it does not. The District Court was within its discretion when it analogized

Appellant’s conduct to attempted murder under the guidelines. The subsequent sentence

was consistent with the plea agreement, which stated that “the Court may make factual

and legal determinations that differ from these stipulations and that may result in an

increase or decrease in the Sentencing Guidelines range and the sentence that may be

                                              16
imposed.” (Suppl. App. 3.) In sum, Appellant has waived his statutory right to appeal on

this ground.

                                   V. CONCLUSION

       For the above reasons and the reasons the District Court set forth, we affirm the

sentence of James Shedrick re-ordered on November 13, 2007.




                                            17
