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United States v. Shipman, 05-5061 (2006)

Court: Court of Appeals for the Fourth Circuit Number: 05-5061 Visitors: 5
Filed: Jul. 18, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-5061 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RAYSHAWN SHIPMAN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (CR-05-16) Submitted: June 30, 2006 Decided: July 18, 2006 Before WILKINSON, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Darren Byers, LAW OFFICE
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                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-5061



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RAYSHAWN SHIPMAN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-05-16)


Submitted:   June 30, 2006                  Decided:   July 18, 2006


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              A jury convicted Rayshawn Shipman of possession with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) (2000).       The district court sentenced Shipman to 360

months’ imprisonment.       Shipman’s counsel filed a brief pursuant to

Anders v. California, 
386 U.S. 738
(1967), stating there were no

meritorious issues for appeal but challenging Shipman’s sentence in

light of United States v. Booker, 
543 U.S. 220
(2005).                         In

addition, Shipman has filed a pro se supplemental brief.                  For the

reasons discussed below, we affirm.

              The   district    court     sentenced    Shipman   as   a    career

offender, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 4B1.1 (2004). Thus, Shipman’s offense level was thirty-seven and

his criminal history category was VI, see 
id., resulting in a
range

of 360 months to life imprisonment under the sentencing guidelines.

See USSG Ch. 5, Pt. A (sentencing table).                His sentence of 360

months’ imprisonment fell at the bottom of this range.

              After Booker, a sentencing court is no longer bound by

the   range    prescribed      by   the   sentencing    guidelines.        United

States v. Green, 
436 F.3d 449
, 455-56 (4th Cir.), cert. denied, 
126 S. Ct. 2309
(2006); United States v. Hughes, 
401 F.3d 540
, 546 (4th

Cir. 2005). In determining the sentence, however, courts are still

required to calculate and consider the guidelines range, as well as

the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.


                                        - 2 -
2005).    We will affirm a post-Booker sentence if it is within the

statutorily prescribed range and is reasonable.                       
Hughes, 401 F.3d at 546-47
.      Further,      “while       we   believe     that   the    appropriate

circumstances for imposing a sentence outside the guideline range

will depend on the facts of individual cases, we have no reason to

doubt    that    most     sentences      will      continue     to    fall   within   the

applicable guideline range.” United States v. White, 
405 F.3d 208
,

219 (4th Cir.), cert. denied, 
126 S. Ct. 668
(2005).                     “[A] sentence

imposed within the properly calculated Guidelines range . . . is

presumptively reasonable.”                
Green, 436 F.3d at 457
(internal

quotation       marks    and    citation      omitted).        The    district    court,

appropriately         treating    the    guidelines       as    advisory,     sentenced

Shipman at the bottom of the applicable range. We conclude Shipman

has    failed    to     rebut    the    presumption     that     this    sentence     was

reasonable.

            We have considered the claims raised by Shipman in his

supplemental brief and subsequent filing, and find them without

merit.    Contrary to Shipman’s claim, the district court possessed

jurisdiction.           See 18 U.S.C. § 3231 (2000).                  Furthermore, the

record reveals substantial evidence supporting the conviction. See

Glasser v. United States, 
315 U.S. 60
, 80 (1942); see also United

States v. Wilson, 
118 F.3d 228
, 234 (4th Cir. 1997) (stating we do

not    “weigh     the     evidence      or    review    the     credibility      of   the

witnesses”); United States v. Tresvant, 
677 F.2d 1018
, 1021 (4th


                                             - 3 -
Cir. 1982) (providing the “government the benefit of all reasonable

inferences     from   the   facts   proven   to   those   sought   to   be

established”).     Similarly, we find meritless Shipman’s conclusory

claims of prosecutorial misconduct, unduly cumulative evidence, and

a violation of Brady v. Maryland, 
373 U.S. 83
(1963), all of which

stem from Shipman’s unsupported allegations of dishonest testimony

by the Government’s witnesses.       We also reject Shipman’s claims of

actual innocence and an alleged abuse of discretion by the district

court with respect to evidence of a photographic lineup identifying

Shipman that was never presented to the jury.       Moreover, we find no

Confrontation Clause violation.        See Crawford v. Washington, 
541 U.S. 36
(2004).

          Finally, Shipman’s allegations of ineffective assistance

of counsel are more appropriately raised in a motion pursuant to 28

U.S.C. § 2255 (2000).       See United States v. Richardson, 
195 F.3d 192
, 198 (4th Cir. 1999).     We do not find ineffective assistance of

counsel apparent on the face of the record on appeal.

             As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.            We therefore

affirm Shipman’s conviction and sentence. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review.             If the

client requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in this


                                    - 4 -
court for leave to withdraw from representation. Counsel’s motion

must state that a copy thereof was served on the client. 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




                              - 5 -

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