United States v. Shaw

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 4, 2024
• Docket: 23-6060
• Status: Unpublished

Opinion

Appellate Case: 23-6060 Document: 010111026766 Date Filed: 04/04/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 4, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6060 (D.C. No. 5:22-CR-00013-PRW-1) TERRENCE JAMAL SHAW, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, EID, and CARSON, Circuit Judges. _________________________________

Terrence Jamal Shaw pled guilty to possessing, brandishing, and discharging a

firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii). The district court sentenced him to 15 years in prison, more than

the 10-year statutory minimum advised by the United States Sentencing Guidelines.

Mr. Shaw appeals, challenging the substantive reasonableness of his sentence.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-6060 Document: 010111026766 Date Filed: 04/04/2024 Page: 2

I. Background

On the night of July 26–27, 2021, Mr. Shaw approached a Little Caesar’s

Pizza restaurant in Bethany, Oklahoma, wearing a robe and a gas mask. Mr. Shaw

motioned to an employee inside, indicating he wanted to use the phone. After the

employee did not let him in, Mr. Shaw shot the front door with a gun, shattering the

glass. He entered the restaurant carrying a long gun and told the employee to give

him all the money. She filled a bag with money from the restaurant’s safe and gave it

to Mr. Shaw. He left, dropping a trail of cash which officers later followed to his

nearby apartment.

Mr. Shaw was indicted for one count of Hobbs Act Robbery, 18 U.S.C.

§ 1951(a), and one count of discharging a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).1 Pursuant to a plea agreement,

the Hobbs Act charge was dismissed, and Mr. Shaw pled guilty to the § 924(c)

charge. He waived most rights to appeal but preserved his right to appeal the

substantive reasonableness of his sentence if it exceeded the Guidelines sentence.

A presentence investigation report (PSR) summarized that Mr. Shaw had 17

prior adjudications and convictions, with a criminal history score of 11, placing him

in criminal history category V under the Guidelines. However, the criminal history

1 “The Hobbs Act makes it a federal crime to commit, attempt to commit, or conspire to commit a robbery with an interstate component. Meanwhile, § 924(c) authorizes enhanced punishments for those who use a firearm in connection with a crime of violence.” United States v. Taylor, 596 U.S. 845, 848 (2022) (citation and internal quotation marks omitted). 2 Appellate Case: 23-6060 Document: 010111026766 Date Filed: 04/04/2024 Page: 3

calculation did not affect his Guidelines sentence, which was equal to the statutory

minimum of 10 years. See 18 U.S.C. § 924(c)(1)(A)(iii); United States Sentencing

Commission, Guidelines Manual, § 2K2.4(b) (Nov. 2021). In a written

memorandum, Mr. Shaw argued for the 10-year Guidelines sentence. He emphasized

that he had been abused by gang members as a child after witnessing illegal activity,

then was shot in the stomach as a teenager, resulting in multiple surgeries and

ongoing health problems. He also emphasized having a fatherly relationship with the

adult daughters of his former girlfriend, one of whom then lived with Mr. Shaw’s

mother. The government moved for an upward variance, and the district court gave

notice it was considering an upward departure.

At sentencing, on April 6, 2023, the district court adopted the PSR with no

objections. The restaurant employee testified about the impacts the robbery had on

her, including that she had to quit her job because of fear and anxiety and lost her

insurance as a result. The restaurant’s operations director also testified, describing

the rarity of having a gun discharged during a robbery and the negative effects on the

business. Mr. Shaw declined to make a statement.

Before hearing argument, the district judge reiterated that he was considering

both an upward departure and an upward variance based on Mr. Shaw’s criminal

history, and focused on that concern, stating in part:

[T]his is one of the worst criminal histories I’ve seen in terms of just volume . . . of interactions with the police but, not only that, of—from a very young age sort of the types of crimes where it appears like he just targets what I’d call ‘very innocent victims,’ . . . random victims, with these types of crimes.

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So . . . I’m really concerned about, you know, protecting the public, and incapacitation and things like that are at the forefront of my mind. So . . . that’s what I’m . . . thinking about and am most concerned about in this case. R. vol. 3, at 15–16. Mr. Shaw’s counsel maintained the request for a guidelines sentence,

arguing his criminal history was accounted for by the Guidelines.2 The government

asked for a sentence of 20 years.

The district judge imposed a prison term of 15 years, followed by 5 years’

supervised release. He indicated he had considered the factors set by 18 U.S.C.

§ 3553(a). He explained his reasons for giving particular weight to Mr. Shaw’s

criminal history, noting “the length of the criminal history, how early it started,” and

that “there’s been a trend towards . . . having guns and using guns in crimes and . . .

an escalation in a way that is gravely concerning . . . when I think about protecting

the public.” R. vol. 3, at 27. The judge also addressed “the nature and circumstances

of this offense,” noting Mr. Shaw had victimized “a random business and a random

victim in order to make some quick cash.” Id. Further, the judge stated “it’s not a

one-off. It’s . . . a trend . . . and I can see no evidence that you have any desire or

intent to ever be a contributing member of society, and so I have to think long and

hard about protecting the public . . . .” Id. at 28. In sum, the district judge found

“ample justification for either an upward variance or a departure,” and that “both are

2 At sentencing Mr. Shaw’s counsel also asked the court to take into consideration the fact that Mr. Shaw was then also facing an additional mandatory minimum sentence of 20 years for Oklahoma state charges. On appeal, Mr. Shaw does not argue any error related to consideration of the state court sentencing.

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justified.” Id. at 30. The district court indicated its above-Guidelines sentence was

imposed using both a departure pursuant to Application Note 2(B) to USSG § 2K2.4,

based on Mr. Shaw’s criminal history and the seriousness of the offense, and also an

upward variance.

II. Discussion

Substantive reasonableness “addresses whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in

18 U.S.C. § 3553(a).”3 United States v. McCrary, 43 F.4th 1239, 1244 (10th Cir.

2022) (internal quotation marks omitted). We “review all sentences—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

review is “highly deferential.” McCrary, 43 F.4th at 1249. “We will reverse only if

the sentence imposed was arbitrary, capricious, whimsical, or manifestly

unreasonable, or if the district court exceeded the bounds of permissible choice,

given the facts and the applicable law in the case at hand.” Id. (internal quotation

marks omitted).

3 Section 3553(a) “requires district courts to consider seven factors in sentencing: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, (c) incapacitation, and (d) rehabilitation, (3) the kinds of sentences available; (4) the Sentencing Commission Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted sentencing disparities; and (7) the need for restitution.” United States v. Cookson, 922 F.3d 1079, 1092 (10th Cir. 2019) (citations and internal quotation marks omitted). 5 Appellate Case: 23-6060 Document: 010111026766 Date Filed: 04/04/2024 Page: 6

On appellate review, we “do not reweigh the § 3553 sentencing factors but

instead ask whether the sentence fell within the range of rationally available choices

that facts and the law at issue can fairly support.” Id. (brackets and internal quotation

marks omitted). “[T]he district court need not afford equal weight to each § 3553(a)

factor, and we will defer on substantive-reasonableness review not only to a district

court’s factual findings but also to its determinations of the weight to be afforded to

such findings.” United States v. Cookson, 922 F.3d 1079, 1094 (10th Cir. 2019)

(citations and internal quotation marks omitted).

On appeal, Mr. Shaw argues the district court failed to consider mitigating

facts, including his relationship with his ex-girlfriend’s daughters and his physical

and mental health challenges, many of which stem from the gunshot he suffered as a

teenager. He also argues the district court overstated the seriousness of his criminal

history, which he acknowledges is “fairly extensive,” but characterizes as “[f]or the

most part . . . comprised of relatively minor offenses . . . .” Aplt. Opening Br. at 8.

In short, Mr. Shaw argues the district court should have given less weight to

his criminal history and more weight to other factors. But our review does not

encompass such de novo reweighing of the facts and the § 3553(a) factors. See

McCrary, 43 F.4th at 1249. Mr. Shaw criticizes the district court for not mentioning

the facts he now emphasizes as mitigating. However, the district court was not

required to give equal weight to all factors, and we defer to its determination of the

weight given to each. See Cookson, 922 F.3d at 1094. “[N]o algorithm exists that

instructs the district judge how to combine the factors or what weight to put on each

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one.” United States v. Barnes, 890 F.3d 910, 916 (10th Cir. 2018). Moreover,

although Mr. Shaw included these facts in his sentencing memorandum, neither he

nor his counsel raised them at the sentencing hearing. The district court did not

abuse its discretion when it also did not address them.4

Mr. Shaw also objects to the sentencing judge describing his criminal history

as “one of the worst . . . I’ve seen in terms of just volume . . . .” R. Vol. 3, at 15. We

conclude the district court adequately explained its concerns not only with the length

of Mr. Shaw’s criminal history and number of prior convictions, but also the nature

of the current offense, the types of past crimes, the apparent trend towards use of

firearms, and a pattern of targeting innocent victims. It also weighed those concerns

in connection with the need to protect the public. We see no abuse of discretion in

the district court’s determination that Mr. Shaw’s criminal history warranted

imposition of an above-Guidelines sentence. See Barnes, 890 F.3d at 921 (noting

district courts have broad discretion to consider particular facts in sentencing);

United States v. Garcia, 946 F.3d 1191, 1214 (10th Cir. 2020) (stating that where

Guidelines’ criminal history computation does not “fully reflect the seriousness of an

offender’s criminal background,” then “action to elevate sentences above the . . .

Guidelines range may be appropriate”).

4 Mr. Shaw challenges only the substantive reasonableness of his sentence. He does not argue the district court committed any procedural error or that its sentence was procedurally unreasonable. See McCrary, 43 F.4th at 1244 (distinguishing procedural reasonableness from substantive reasonableness). 7 Appellate Case: 23-6060 Document: 010111026766 Date Filed: 04/04/2024 Page: 8

In sum, Mr. Shaw has not shown that the sentence selected by the district court

was “arbitrary, capricious, whimsical, or manifestly unreasonable,” or “exceeded the

bounds of permissible choice.” McCrary, 43 F.4th at 1249 (internal quotation marks

omitted). We therefore hold the district court did not abuse its discretion in imposing

Mr. Shaw’s sentence.

III. Conclusion

Mr. Shaw has not shown the sentence imposed by the district court was

substantively unreasonable. We therefore affirm the district court’s judgment.

Entered for the Court

Allison H. Eid Circuit Judge