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


7-7-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3445




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                                                           NOT PRECEDENTIAL
                                _____________

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 06-3445
                                 ____________


                       UNITED STATES OF AMERICA

                                        v.

                            LINWOOD LIPSCOMB
                               a/k/a Len Woods

                              Linwood Lipscomb,
                                          Appellant
                                 ____________

                 On Appeal from the United States District Court
                          for the District of Delaware
                                (No. 05-cr-00091)
                      District Judge: Hon. Kent A. Jordan

                   Submitted Under Third Circuit LAR 34.1(a)
                                June 10, 2008

        Before: AMBRO, CHAGARES, and GREENBERG, Circuit Judges.
                            ____________

                              (Filed: July 7, 2008)



                           OPINION OF THE COURT




CHAGARES, Circuit Judge.
       Defendant-Appellant Linwood Lipscomb (Lipscomb) appeals his sentence,

contending that the District Court failed to apply the sentencing factors set forth in 18

U.S.C. § 3553(a) and that his sentence is unreasonable. Lipscomb also argues that the

District Court improperly applied a two-level sentencing enhancement for obstruction of

justice. Because there is ample record evidence that the District Court considered the §

3553(a) factors and imposed a sentence that reflects a reasonable application of those

factors, and because that sentence did not include an improper sentencing adjustment, we

will affirm the District Court's decision in all respects.

                                                   I.

       As we write only for the parties, our summary of the facts is brief. On October 13,

2005, a federal grand jury returned a five-count indictment charging Lipscomb with two

counts of bankruptcy fraud in violation of 18 U.S.C. § 152(3), two counts of bankruptcy

fraud in violation of 18 U.S.C. § 152(2), and one count of misuse of a social security

number, in violation of 42 U.S.C. § 408(a)(7)(B). After a two-day trial in March 2006, a

jury found Lipscomb guilty of the four bankruptcy fraud charges and acquitted him on the

misuse of a social security number charge. Based on Lipscomb’s trial testimony, the

probation officer preparing Lipscomb’s Presentence Report (PSR) recommended a two-

level enhancement for obstruction of justice pursuant to United States Sentencing

Guideline (U.S.S.G.) § 3C1.1. At Lipscomb’s sentencing hearing on June 12, 2006, the

District Court noted that the Guideline calculations, which included the two-level



                                               2
obstruction-of-justice adjustment, indicated an Offense Level of 12, yielding a Guideline

range of 12 to 18 months imprisonment. Both the Government and Lipscomb’s counsel

agreed that this calculation was accurate, and the District Court granted a continuance to

permit Lipscomb to respond to a victim impact statement. At the continuation of the

sentencing hearing, on July 7, 2006, the District Court sentenced Lipscomb to 36 months

imprisonment. This appeal followed.

                                                  II.

                                                  A.

       Lipscomb first contends that the District Court improperly applied a two-level

enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Because Lipscomb

did not object to his sentence on this ground during his sentencing hearing, we review the

District Court’s judgment for plain error, United States v. Watson, 482 F.3d 269, 274 (3d

Cir. 2007), and conclude that such error is not present in this case.

       At trial, Lipscomb testified that his “sister” filed a 2004 bankruptcy petition on his

behalf and that he did not instruct her to use a fake social security number. During his

PSR interview, however, Lipscomb informed the probation officer that his only siblings

are two older brothers and one younger foster brother. The officer concluded that

Lipscomb created the scenario of a fictitious sister changing the bankruptcy petition

without his knowledge, and that he gave false testimony at trial. On this basis, the officer

recommended a two-level enhancement for obstruction of justice. At his sentencing



                                              3
hearing, Lipscomb told the District Court that he does not have a biological sister, but that

the woman who filed the 2004 bankruptcy petition for him had “always been like a sister”

to him. Appendix (App.) 31. His counsel also argued that the term “sister” is “loosely

used” in the African-American community. App. 34. The District Court determined that

Lipscomb’s use of the word “sister” was false testimony, rejected Lipscomb’s claims

about his intentions in using the term, and found that Lipscomb’s testimony about his

“sister” related to a material matter because it targeted a particular count for which

Lipscomb was acquitted at trial, namely, the misuse of a social security number charge.

       U.S.S.G. § 3C1.1 provides in relevant part: “If (A) the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of justice

during the course of the . . . prosecution . . . of the instant offense of conviction, and (B)

the obstructive conduct related to (i) the defendant’s offense of conviction and any

relevant conduct[,] . . . increase the offense level by 2 levels.” “Perjury is one of the

types of conduct to which [§ 3C1.1] applies.” United States v. Johnson, 302 F.3d 139,

154 (3d Cir. 2002); see also U.S.S.G. § 3C1.1 App. Note 4(b). For the purposes of §

3C1.1, a defendant commits perjury if he “gives false testimony concerning a material

matter with the willful intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94

(1993). The facts underlying a sentencing enhancement need only be proven by a

preponderance of the evidence. See Johnson, 302 F.3d at 154.



                                               4
       Under oath, Lipscomb testified that he signed and dated the 2004 bankruptcy

petition, but that his sister completed and filed the form, inserting the fake social security

number that was the subject of the last count in Lipscomb’s indictment. App. 23-24.

Ultimately, the jury found Lipscomb not guilty on this count. In addition to claiming he

inadvertently referred to the woman as his sister, Lipscomb also claims that the critical

point of this testimony was that he instructed “some other person” to file the petition on

his behalf, and that individual’s relation to him was “not really significant.” Appellant

Br. at 16-17.

       The preponderance of the evidence supports the District Court’s determination that

Lipscomb’s testimony regarding his “sister” was not a result of confusion or mistake, but

rather a willful lie related to a material matter and intended to affect the outcome of the

trial. Lipscomb first referenced his sister’s involvement when questioned on redirect

examination about the 2004 bankruptcy petition. He repeatedly referred to his sister’s

role while explaining how additional information, including the fake social security

number, was inserted onto the petition.1 Lipscomb was asked several plain questions

about his sister’s involvement, and all of his answers indicated that he had entrusted the

bankruptcy petition to a sibling. The jury arguably believed his story, as Lipscomb was

1
        When asked what happened to the 2004 bankruptcy petition, Lipscomb replied, “ .
. . [M]y sister, I told her to go file it for me. And she went and filed it.” App. 23. When
questioned about how the fake social security number and other information were entered
onto the petition, Lipscomb answered, “My sister put it there,” and stated that he did not
tell his sister to use a false number. App. 24. In response to the question, “How do you
get along with your sister, now?” Lipscomb replied, “Off and on. It’s not the best.” Id.


                                              5
acquitted of the misuse of a social security number charge. Regardless of the actual effect

Lipscomb’s statements had on the final verdict, they targeted at least one of the charges

contested at trial. Therefore, the District Court did not err in concluding that Lipscomb

misled the court on a material matter, and it properly applied the two-level sentencing

enhancement. See U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n.6 (providing that a

“material” statement, “as used in th[e] section,” is a statement that, “if believed, would

tend to influence or affect the issue under determination”).

                                                  B.

       Lipscomb also contends that the District Court’s consideration and application of

the § 3553(a) sentencing factors were inadequate. We review a sentence imposed by a

District Court for reasonableness. United States v. Cooper, 437 F.3d 324, 326 (3d Cir.

2006). This inquiry has two steps, because, in the sentencing context, reasonableness has

both procedural and substantive components. See, e.g., United States v. Ferguson, 456

F.3d 660, 664 (6th Cir. 2006). First, we must review the record to determine if the

District Court exercised its discretion by considering the relevant factors enumerated in §

3553(a).2 Id. at 329. If the record makes clear that the District Court gave meaningful


2
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the need for the sentence imposed to:
(A) reflect the seriousness of the offense, promote response for the law, and provide just
punishment for the offense; (B) adequately deter criminal conduct; (C) protect the public
from further crimes; (D) provide the defendant with training and treatment; (3) the kinds
of sentencing and the established sentencing range; (5) pertinent policy statements of the
Sentencing Commission; (6) the need to avoid unwarranted sentence disparities among
similar defendants; and (7) the need to provide restitution to any victims. 18 U.S.C. §

                                              6
consideration to the § 3553(a) factors, our analysis must proceed to the substantive aspect

of reasonableness: an evaluation of whether the sentence reflects a rational application of

those factors. Cooper, 437 F.3d at 329.

       Although there is no bright-line test to determine what depth of analysis qualifies

as “meaningful consideration,” we have articulated certain principles that guide our

review in this respect. On the one hand, the District Court “need not discuss every

argument made by a litigant if an argument is clearly without merit. Nor must a court

discuss and make findings as to each of the § 3553(a) factors if the record makes clear the

court took the factors into account in sentencing.” Cooper, 437 F.3d at 329 (internal

citations omitted). On the other hand, a “rote statement” that the Court has considered the

§ 3553(a) factors is insufficient. Id. This is so because “there is no way to review a

court’s exercise of discretion if it does not articulate the reasons underlying its decision.”

Id. (quoting United States v. Johnson, 388 F.3d 96, 101 (3d Cir. 2004) (internal

quotations omitted)). In view of these principles, the question is whether “the record as a

whole reflects rational and meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a).” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). In

this case, there is ample evidence that the District Court considered the § 3553(a) factors

in imposing its sentence. First, the court considered § 3553(a)(4), because it recited the

Guideline range and noted its “advisory” nature. App. 33, 47. Next, it stated its reasons

for imposing a sentence above the advisory range. These factors included the nature and


3553(a).
                                               7
circumstances of Lipscomb’s bankruptcy-fraud offenses and his own personal

characteristics. See § 3553(a)(1). The court deemed Lipscomb’s offenses “especially

egregious” due to the fact that Lipscomb twice abused the bankruptcy process, harming

creditors and Rea Anderson, whose name Lipscomb used to make the false filings. App.

55-56. The court also characterized Lipscomb as a “serial abuser of the judicial system”

who “lied in court” and was on probation for a fraud-type offense when he committed the

bankruptcy fraud at issue. App. 54, 56. The court further articulated the need to sentence

Lipscomb above the Guidelines range in order to “promote the defendant’s respect for the

law,” and “protect the public from further crimes.” App. 56. See § 3553(a)(2)(A), (C).

Moreover, the court’s explanation for Lipscomb’s sentence demonstrates consideration

that any sentencing disparity between Lipscomb and similarly situated defendants was

necessary under the circumstances. See § 3553(a)(6); App. 55 (“ . . . I’m going to

sentence you to a term of imprisonment above the sentencing guideline range because I

believe you are outside the ordinary case here.”)

       Lipscomb contends that the District Court did not adequately consider his age,

minor criminal record, 3 family situation, lack of drug or alcohol problems, military

service, or employment history in imposing the sentence. As background characteristics

of the defendant, these factors all fall under § 3553(a)(1), and do not warrant remand in

this case. The District Court reviewed the PSR, which provided information regarding

3
       The court listed Lipscomb’s criminal history as a factor supporting a sentence
above the Guideline range.


                                             8
Lipscomb’s personal history and criminal conduct, and adopted its offense level, criminal

history category, and Guidelines range without objection from Lipscomb. App. 33, 47.

Given the entire record in this case, the District Court’s determination not to give the

factors emphasized by Lipscomb the weight Lipscomb argues they deserve does not make

the sentencing procedure unreasonable. Cf. United States v. Bungar, 478 F.3d 540, 546

(“Nor do we find that a district court’s failure to give mitigating factors the weight a

defendant contends they deserve renders the sentence unreasonable.”)

                                             III.

       The sole remaining issue is the substantive aspect of reasonableness, i.e., whether

the sentence imposed by the District Court reflects a reasonable application of the §

3553(a) factors. Lipscomb argues that because the District Court did not give appropriate

weight to certain § 3553(a) factors, it did not reasonably apply these factors. As we have

stated, the District Court’s sentence was procedurally reasonable; therefore, this argument

is unpersuasive. Moreover, we will uphold an above-Guidelines sentence provided it is

reasonable and the District Court’s statement of reasons supports it. See United States v.

Douglas, 244 Fed. Appx. 411, 413 (3d Cir. 2007). Here, the District Court cited four

main reasons for such a sentence; namely, the need for the sentence imposed to reflect the

seriousness of the offenses, promote Lipscomb’s respect for the law, deter Lipscomb from

further criminal behavior, and protect the public. App. 55-56. The record demonstrates




                                              9
that the court elaborated on each of these reasons why a sentence within the Guideline

range was insufficient, and we will uphold its decision.

                                            IV.

       For the foregoing reasons, we will affirm the decision of the District Court in all

respects.




                                             10
