United States of America v. Clevo Shuff

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4707
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLEVO SHUFF,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:09-cr-00008-FDW-1)
Submitted: April 29, 2013 Decided: July 18, 2013
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Clevo Shuff was convicted after a jury trial of one
count of conspiracy to distribute and to possess with intent to
distribute at least fifty grams of cocaine base and aiding and
abetting, in violation of 18 U.S.C. § 2 (2006), 21 U.S.C.A.
§ 841(b)(1)(A) (West 2006 & Supp. 2012), and 21 U.S.C. § 846
(2006) (count one), one count of possession with intent to
distribute at least five grams of cocaine base and aiding and
abetting, in violation of 18 U.S.C. § 2 and 21 U.S.C.A.
§ 841(a), (b)(1)(B) (count two), and one count of using and
carrying a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2006) (count three).
On remand following this court’s affirmance of Shuff’s
convictions and sentence on count three and vacatur of Shuff’s
sentences on counts one and two,* the district court imposed an
upward variance from the Guidelines range of 130 to 162 months’
imprisonment and sentenced Shuff to concurrent terms of 240
* United States v. Shuff, 470 F. App’x 158, 162 (4th Cir.
2012) (No. 11–4426) (holding that Shuff’s prior state
convictions were not punishable by terms of imprisonment
exceeding one year and thus were not proper predicates for
purposes of 21 U.S.C.A. § 841(b)(1)(A) and the career offender
Sentencing Guideline and vacating Shuff’s life sentence on count
one and career-offender-based sentence of 360 months’
imprisonment on count two).

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months’ imprisonment. On appeal, Shuff challenges these
sentences. We affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” under a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). This standard of
review involves two steps; under the first, we examine the
sentence for significant procedural errors, and under the
second, we review the substance of the sentence.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(examining Gall, 552 U.S. at 50-51). Significant procedural
errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.”
Gall, 552 U.S. at 51. If there are no significant procedural
errors, we then consider the substantive reasonableness of the
sentence, “tak[ing] into account the totality of the
circumstances.” Id.
When the district court imposes a variant sentence, we
consider “whether the . . . court acted reasonably both with
respect to its decision to impose such a sentence and with

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respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). Such a sentence is unreasonable if the
district court “relie[d] on improper factors in imposing a
sentence outside the properly calculated advisory sentencing
range.” Id.
After review of the record and the parties’ briefs, we
reject as without merit Shuff’s argument that the district
court’s consideration on remand of the drug quantity involved in
his offenses and his role with respect to his co-defendant—
matters on which the Government relied in part in arguing for an
upward variance from the Guidelines range—violated the mandate
rule. The mandate rule “forecloses relitigation of issues
expressly or impliedly decided by the appellate court,” as well
as “issues decided by the district court but foregone on appeal
or otherwise waived, for example because they were not raised in
the district court.” United States v. Bell, 5 F.3d 64, 66
(4th Cir. 1993). Shuff and the Government, however, lacked the
opportunity or incentive to raise these issues in his initial
appeal or in a cross-appeal because the district court initially
sentenced Shuff to the then-statutorily-required sentence of
life imprisonment on count one, 21 U.S.C.A. § 841(b)(1)(A), and
a career-offender-based-sentence on count two. Accordingly, the
mandate rule did not bar the district court’s consideration of

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these matters on remand. See United States v. Quintieri,
306 F.3d 1217, 1229-30 (2d Cir. 2002) (“[I]f a sentencing
determination had no practical effect on a . . . sentence at the
original sentencing but becomes relevant only after appellate
review, a [party] is free to challenge that sentencing
determination on remand, and ultimately on reappeal, despite the
failure to challenge that determination initially.”); cf. Omni
Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d
502, 505 (4th Cir. 1992) (“It is elementary that where an
argument could have been raised on an initial appeal, it is
inappropriate to consider that argument on a second appeal
following remand.” (internal quotation marks omitted)).
Shuff also challenges his sentences as otherwise
procedurally unreasonable and as substantively unreasonable.
We reject these contentions as well. Considered in their
totality, Shuff’s arguments in support of his claim of
procedural error and his second argument supporting his claim of
substantive error amount to a claim that the 240-month sentences
are unreasonable because the district court violated the mandate
rule in considering the drug quantity involved in his offenses,
his role relative to his co-defendant, and his criminal history
as part of its analysis under 18 U.S.C. § 3553(a). However, the
mandate rule did not prohibit the district court from
considering these matters in arriving at a sentence that was

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sufficient, but not greater than necessary, to comply with
§ 3553(a)’s sentencing objectives, and Shuff does not identify
any other rule of sentencing procedure prohibiting the district
court from considering these issues on remand or suggest that
the facts the court relied on in imposing the variant sentences
were clearly or otherwise erroneous.
Additionally, at sentencing on remand—after
calculating Shuff’s Guidelines range, hearing his allocution,
and hearing argument from counsel—the district court concluded
that an upward variance under 18 U.S.C. § 3553(a) to concurrent
terms of 240 months’ imprisonment was necessary to achieve the
purposes of sentencing. In reaching this conclusion, the
district court properly considered the nature and circumstances
of Shuff’s offense conduct and the sentencing range established
by the Guidelines, § 3553(a)(1), (4)(A), making note of Shuff’s
expressed threat to shoot police officers, the drug amounts
involved in his offenses, and Shuff’s role with respect to his
co-defendant. The court also properly considered Shuff’s
history and characteristics and the need for the sentence to
deter Shuff and to protect the public, § 3553(a)(1), (2)(B)-(C),
addressing on the record Shuff’s criminal history and
rehabilitation efforts following initial sentencing.
The district court’s consideration of the relevant 18 U.S.C.
§ 3553(a) factors and articulation of its reasons for varying

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from the Guidelines range support our decision to defer to its
determination as to the extent of the variance. See United
States v. Diosdado-Star, 630 F.3d 359, 366-67 (4th Cir.)
(affirming substantive reasonableness of variance sentence six
years greater than Guidelines range because sentence was based
on the district court’s examination of the § 3553(a) factors),
cert. denied, 131 S. Ct. 2946 (2011); see also United States v.
Angle, 598 F.3d 352, 359 (7th Cir. 2010) (“All that matters is
that the sentence imposed be reasonable in relation to the
‘package’ of reasons given by the court.”).
We therefore affirm the district court’s amended
judgment. 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 the decisional
process.
AFFIRMED

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