Filed: Mar. 12, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-12-2007 USA v. Shepherd Precedential or Non-Precedential: Non-Precedential Docket No. 05-4601 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Shepherd" (2007). 2007 Decisions. Paper 1498. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1498 This decision is brought to you for free and open access by the Opinions of the United
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-12-2007 USA v. Shepherd Precedential or Non-Precedential: Non-Precedential Docket No. 05-4601 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Shepherd" (2007). 2007 Decisions. Paper 1498. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1498 This decision is brought to you for free and open access by the Opinions of the United S..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-12-2007
USA v. Shepherd
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4601
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Shepherd" (2007). 2007 Decisions. Paper 1498.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1498
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4601
UNITED STATES OF AMERICA
v.
LEROY SHEPHERD,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 02-246)
Chief District Judge: Honorable Gary L. Lancaster
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2007
Before: SLOVITER and AMBRO, Circuit Judges
POLLAK,* District Judge
(Filed: March 12, 2007)
OPINION
*
Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
AMBRO, Circuit Judge
I.
Leroy Shepherd was found guilty by a jury on one count of conspiracy to distribute
five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. Shepherd was first
sentenced, in October 2004, to 210 months in prison under the then-mandatory Federal
Sentencing Guidelines, and he appealed. After the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), we remanded Shepherd’s sentence to the District
Court for reconsideration in light of that case. On resentencing, the District Court again
sentenced Shepherd to a 210-month term, and he again appeals—this time contesting the
reasonableness of his sentence.1
II.
Shepherd makes two arguments as to why his sentence is unreasonable. First, he
claims that the District Court’s conclusion that between 50 and 100 kilograms of cocaine
were properly attributable to him is not supported with evidence bearing “sufficient
indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3.2 Second, he
asserts that the District Court, when determining his sentence, did not adequately consider
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). United States v.
Grier, 475 F.3d 556, 561 (3d Cir. 2007) (en banc).
2
In finding the facts underlying the calculation of the Guidelines base offense level, a
district court must use the preponderance-of-the-evidence standard. Grier, 475 F.3d at
561–66. We review those findings for clear error.
Id. at 568–70.
2
the factors enumerated in 18 U.S.C. § 3553(a). See United States v. Cooper, 437 F.3d
324, 329–32 (3d Cir. 2006). We reject both arguments, setting out only those facts
necessary to our decision.
A.
“Given the dramatic effect . . . estimates [of drug weight] have on the defendant’s
sentence, the sentencing court must carefully review the [G]overnment’s submissions to
ensure that its estimates are proven by a preponderance of the evidence.” United States v.
Collado, 975 F.2d 985, 998 (3d Cir. 1992). And though “[w]e recognize that in
calculating the amounts involved in drug transactions, some degree of estimation must be
permitted,” such calculations may not be “based on mere speculation.”
Id. “[T]his
standard should be applied rigorously.” United States v. Miele,
989 F.2d 659, 664 (3d
Cir. 1993). This remains true even though the Guidelines are now only advisory, as they
are still “the ‘strong force’ that defines the starting point for all that follows[,] . . .
necessarily [affecting]—and often defin[ing]—the ending point.”
Grier, 475 F.3d at 608
(McKee, J., dissenting).
In this case, however, the District Court’s finding that Shepherd was responsible
for 50–100 kilograms of cocaine was based on testimony and information received from
no fewer than twelve people who were intimately involved in this cocaine distribution
conspiracy, were customers of Shepherd, or had observed various aspects of the
3
operation.3 It is true, as Shepherd argues, that one of these persons—Roy Mercer, the
conspiracy’s kingpin—may be of questionable credibility, given that his testimony
vacillated on how much cocaine Shepherd handled. The District Court, however, did not
adopt Mercer’s highest estimations, which ranged from 100 to 150 kilograms.
Moreover—and unlike the facts in Miele, cited by Shepherd for support—Mercer was not
the only source relied on in calculating the relevant amount of cocaine. See 989 F.2d at
665. Given the number of witnesses who testified about multiple trips to Shepherd’s
supplier (each involving 10–17 kilograms) or about the kilogram-size cocaine supply seen
when buying cocaine from him, as well as the amount of restitution ordered by the jury
($1.28 million)—which can only correspond to a substantial quantity of drugs—we have
little trouble concluding that the District Court’s finding is not clearly erroneous.
B.
Our reasonableness review pursuant to Booker requires that the record
“demonstrate [that] the trial court gave meaningful consideration to the § 3553(a)
factors.”4 Cooper, 437 F.3d at 329; see also United States v. Jackson,
467 F.3d 834,
3
Because the District Court did not specifically comment on which evidence led to its
findings on this issue, but did adopt the Presentence Investigation Report and sentenced
accordingly, we examine the analysis of the evidence set forth therein. See Miele, 989
F.2d at 663.
4
The factors set out in 18 U.S.C. § 3553(a) are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for
4
840–42 (3d Cir. 2006). Shepherd contends that the District Court here failed to do so.
This argument, however, is unpersuasive. Contrary to Shepherd’s protestations, the
District Court—on four pages of record transcript—painstakingly went through the
§ 3553(a) factors, commenting on each and how it informed the Court’s decision. In
addition, though the Court imposed a within-Guideline sentence, nothing in the record
indicates that it treated the Guidelines as mandatory or accorded them undue weight. See
United States v. Gunter, 462 F.3d 237, 248–49 (ruling it error so to proceed). Given the
record here, we do not believe that Shepherd’s 210-month sentence is unreasonable.
* * * * *
For the reasons set forth above, we affirm the sentence imposed by the District
Court.
the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and sentencing range established for—
(A) the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines . . . ;
(5) any pertinent policy statement . . . issued by the Sentencing Commission
. . . that . . . is in effect on the date the defendant is sentenced[;]
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
5
