                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5107


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSHUA DAVID HOUDERSHELDT,

                Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:09-cr-00096)


Submitted:   May 25, 2010                  Decided:   September 9, 2010


Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.    Charles T.
Miller, United States Attorney, Monica K. Schwartz, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Joshua David Houdersheldt pled guilty to one count of

conspiracy      to    acquire    and     obtain     possession     of     oxycodone    by

fraud and one count of attempt to acquire and obtain possession

of oxycodone by fraud, both in violation of 21 U.S.C. § 846

(2006),   and     was    sentenced     to    seventy     months    in     prison.      On

appeal, Houdersheldt argues that the district court erred by

applying a four-level enhancement to his total offense level for

his role as an organizer and leader of a conspiracy involving

five or more people, pursuant to the U.S. Sentencing Guidelines

Manual (“USSG”) § 3B1.1(a) (2008).                 For the reasons that follow,

we affirm Houdersheldt’s sentence.

            In his plea agreement, Houdersheldt waived his right

to   appeal     his     sentence    on      all    grounds,      except    a    properly

preserved challenge to the district court’s determination of the

sentencing Guidelines range.              He also agreed to a stipulation of

facts,    which      explained     that     he    had   forged    prescriptions       for

oxycodone using a prescription pad belonging to his father, and

that the prescriptions were not authorized.                         The stipulation

further stated that Houdersheldt twice drove individuals to a

pharmacy, where those individuals submitted the prescriptions,

obtained the Oxycodone, turned it over to Houdersheldt, and were

paid fifty dollars for the transaction.                       (J.A. 23-24).           The

stipulation       noted    that     Houdersheldt         participated          in   these

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activities to support his own drug addiction, and explained that

he     “lead        [sic],   organized          and     directed”         the     two     other

individuals involved in the transactions.                             It further described

that     Houdersheldt         participated            in    “a        series     of     similar

transactions beginning in at least 2008 and continuing to the

date of his arrest,” and during that time he obtained 92,400

milligrams of oxycodone, which was used by himself and others.

Houdersheldt admitted in the stipulation that he “lead [sic] and

directed       at    least   five    individuals           who   were     involved      in   the

criminal activity,” and that he “personally used approximately

81,900     milligrams         of     the    oxycodone”           obtained        during      the

conspiracy.          Finally, Houdersheldt admitted that he “distributed

approximately 10,500 milligrams of the oxycodone obtained as a

result    of        the   conspiracy,      to       others,      in    part     for   profit.”

Because of the distribution of oxycodone to others, the parties

stipulated that that the applicable Guideline for establishing

the base offense level would be USSG § 2D1.1.

               On appeal, Houdersheldt asserts that “[w]hile [he] was

a leader or organizer of the conspiracy [to obtain oxycodone],

he was not a leader or organizer of the drug selling operation,

the offense of stipulation.”                He argues that this alleged error

produced       an    incorrect      calculation        of     the     advisory    Guidelines

range, resulting in a procedurally unreasonable sentence.



                                                3
             When      reviewing      a     sentence    on    appeal,      “[a]ppellate

courts     are   required       to    give     due    deference     to     the    district

courts'     application        of    the     sentencing      guidelines.”          United

States v. Gormley, 201 F.3d 290, 293-94 (4th Cir. 2000).                           Where,

as here, the facts are undisputed and the issue turns primarily

on the legal interpretation of a term as used in the Guidelines,

the standard of review “moves closer to de novo review.”                             Id.;

see also United States v. Fullilove, 388 F.3d 104, 106 (4th Cir.

2004) (“Because the facts here are undisputed, the only question

before us is one of guidelines application, a question on which

our standard of review approaches de novo.”). *

             Despite        Houdersheldt’s         contentions,     the    introductory

commentary to Chapter 3, Part B controls disposition of this

appeal.          The        commentary       expressly        states       that     “[t]he

determination of a defendant’s role in the offense is to be made

on   the    basis      of    all     conduct       within    the   scope    of    § 1B1.3

(Relevant        Conduct),          i.e.,      all     conduct      included         under

§ 1B1.3(a)(1)-(4), and not solely on the basis of elements and

     *
       In United States v. Love, 134 F.3d 595 (4th Cir. 1998),
this court held that “a district court’s determination of a
defendant’s role in an offense” is reviewed for clear error,
citing United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.
1989).    However, in both of those cases, the determination
turned on the application of the relevant facts.       Here, the
facts are undisputed, and Houdersheldt expressly admits that he
was an organizer and leader of the conspiracy. The issue raised
in this appeal thus turns on a legal interpretation of § 3B1.1.



                                               4
acts cited in the count of conviction.”               USSG ch. 3, pt. B,

intro. cmt.       The term “offense” is defined in the application

notes to § 1B1.1 as “the offense of conviction and all relevant

conduct   under    § 1B1.3   (Relevant     Conduct)   unless     a   different

meaning is specified or is        otherwise clear from the context.”

USSG § 1B1.1, cmt. n.1(H).

           Here, although the parties stipulated to using § 2D1.1

to determine the base offense level, there was no stipulation

regarding enhancements under Chapter Three of the Guidelines.

As the plain language of the Guidelines states, the offense of

conviction, not the offense of stipulation, and all relevant

conduct   that    occurred   during    commission     of   the   offense   of

conviction are to be considered for the purpose of determining

whether   an      aggravating   role       enhancement     is    appropriate.

Houdersheldt conceded in the stipulation of facts that he was a

leader and organizer of the conspiracy, and again admitted that

in his sentencing memorandum to the district court and in his

brief on appeal.       As we stated in United States v. Fells, a

defendant’s “role determination is to be based, not solely on

his role in the counts of conviction, but on his role in the

entirety of his relevant conduct.”             920 F.2d 1179, 1184 (4th

Cir. 1990).       Houdersheldt himself expressly admitted that both

the offense of conviction and his relevant conduct relating to

that offense constituted leadership of the criminal activity.

                                       5
           Accordingly,   we   affirm    Houdersheldt’s   sentence.     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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