United States v. Shepherd

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 13, 2022
• Docket: 20-6192
• Status: Unpublished

Opinion

Appellate Case: 20-6192 Document: 010110670429 Date Filed: 04/13/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT April 13, 2022

Christopher M. Wolpert Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 20-6192 (D.C. No. 5:19-CR-00052-F-1) COLBY SCOTT SHEPHERD (W.D. Okla.) a/k/a Colby Scott Shephard,

Defendant-Appellant.

ORDER AND JUDGMENT*

Before HARTZ, SEYMOUR and BALDOCK, Circuit Judges.

Defendant Colby Scott Shepherd appeals his 300-month sentence for drug

conspiracy in violation of 21 U.S.C. § 846, asserting that it was procedurally and

substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742, we affirm.

*After examining appellant=s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 20-6192 Document: 010110670429 Date Filed: 04/13/2022 Page: 2

Defendant has a lengthy history of drug abuse and prison service. While serving a

sentence in Oklahoma state prison and, under the auspices of the Universal Aryan

Brotherhood (“UAB”), Defendant organized drug deals from behind bars using a

contraband cell phone. As part of an investigation into the UAB’s activities, the

Government used a confidential informant (“CI”) to arrange drug deals with Defendant.

The first attempt resulted in the CI receiving a pound of sugar instead of methamphetamine.

The Government persisted. Acting under the name “Erik,” a Government investigator

messaged Defendant in an attempt to set up another deal. After a series of profane

exchanges, the two agreed to another deal and Defendant had a package containing 53.549

grams of methamphetamine delivered to “Erik.” The relationship continued. With one

successful transaction behind them, Defendant and “Erik” moved on to larger quantities.

The two agreed to the sale of two pounds of methamphetamine for $6,500 and Defendant

set up delivery through a courier. The courier arrived at the location for delivery and was

arrested on scene with two pounds of methamphetamine, a firearm, a secondary supply of

methamphetamine, and Xanax pills. Thereafter, the Government executed a search warrant

for Defendant’s Facebook accounts and found that he had arranged numerous other drug

deals from prison. The Government secured a two-count indictment from a grand jury

charging Defendant with drug conspiracy in violation of 21 U.S.C. § 846 and possession

with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendant pleaded guilty to

the first count without a written plea agreement and the Government subsequently

dismissed the second count.

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Defendant’s presentence report (“PSR”) assigned him a total offense level of 36 and

a criminal history category of VI. Accordingly, the PSR recommended an advisory

guideline range of 324–405 months’ imprisonment. Defendant filed various objections to

the PSR that do not bear directly on the present appeal. After considering Defendant’s

objections to the PSR and the arguments he raised at sentencing, the district court departed

downwards from the guideline range and sentenced Defendant to 300 months in prison.

Unsatisfied with that departure, Defendant claims his sentence is infirm because it is

procedurally and substantively unreasonable. We disagree.

The parties do not dispute that Defendant failed to contemporaneously raise the

arguments presented to us in this appeal before the district court. Accordingly, we review

the procedural reasonableness of Defendant’s sentence for plain error. United States v.

Ruby, 706 F.3d 1221, 1225–26 (10th Cir. 2013). “Under plain error review, the defendant

must demonstrate (1) there is error, (2) that is plain, (3) which affects substantial rights,

and (4) which seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 1226 (citing United States v. Romero, 491 F.3d 1173, 1178 (10th Cir.

2007)). Defendant contends his sentence is procedurally unreasonable because, according

to him, “the district court failed to adequately consider his mitigation arguments.” Aplt’s

Substitute Br. at 11. Specifically, Defendant asserts the district court failed to sufficiently

explain its decision to reject his argument that, among other things, he was driven to drug

dealing because his own addiction had led him into the debt of a prison gang. Defendant

believes the district court’s statement “[n]obody in this courtroom is going to argue with

the fact that [Defendant] is very much committed to being a dope dealer” demonstrates that

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the district court did not appropriately consider his mitigation argument and contends that

the district court’s conduct at sentencing fell below the standard we articulated in United

States v. Wireman, 849 F.3d 956, 958–59 (10th Cir. 2017). We do not share Defendant’s

evaluation of the district court’s performance.

In Wireman, we addressed the issue of what constitutes a sufficient explanation of

a defendant’s sentence. We noted our duty “to ensure that the district court considered the

parties’ arguments for different sentences—an obligation that ‘normally’ requires the

district court to explain why [it] . . . rejected any nonfrivolous arguments—and that the

district court ha[d] a reasoned basis for exercising [its] own legal decisionmaking

authority.” Id. at 958 (quoting Rita v. United States, 551 U.S. 338, 356–57 (2007)) (cleaned

up). We further explained that a “‘functional rejection’ of a defendant’s arguments”

satisfied this obligation. Id. at 959 (citing United States v. Martinez-Barragan, 545 F.3d

894, 903 (10th Cir. 2008)). That is, the district court does not need to specifically or

directly address a defendant’s arguments so long as the sentence imposed falls within the

guideline range and complies with the list of factors detailed in 18 U.S.C. § 3553(a). Id.

at 958–59. Instead, “the district court may satisfy its obligation to explain its reasons for

rejecting the defendant’s arguments for a below-Guidelines sentence by entertaining the

defendant’s arguments, and then somehow indicating that it did not rest on the guidelines

alone, but considered whether the guideline sentence actually conforms, in the

circumstances, to the [18 U.S.C. § 3553(a)] statutory factors.” Id. at 958–59 (cleaned up

and citations omitted) (emphasis in original). Although our opinion in Wireman, by virtue

of its facts, limited its reasoning to sentences falling within the guideline range, the force

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of reason compels us to extend it to sentences below the guideline range. See id. at 958–

66.

That leads us to the content of the district court’s sentencing decision. At the

hearing, the district court stated:

[T]his is also not a case in which I impose the sentence with the wave of the hand. When I have a person before me with, if you can believe it, 38 criminal history points, it might be tempting to impose a sentence way up into the guideline range with a wave of the hand. I don’t do that. And the reason for that is that my sentencing decision is influenced by some of the considerations that [Defendant’s counsel] has quite effectively advocated.

We believe this statement satisfied the district court’s obligation to explain Defendant’s

sentence. The district court’s observation that “[n]obody in this courtroom is going to

argue with the fact that [Defendant] is very much committed to being a dope dealer” does

not undermine that conclusion. Whatever Defendant’s motivations may or may not have

been, the record clearly shows that the district court’s conclusion was not unreasonable and

does not constitute plain error. Furthermore, contrary to Defendant’s view, the district

court’s statement does not mean it failed to consider Defendant’s mitigation arguments, it

simply means that the district court was not persuaded by it. We have little difficulty

concluding the district court’s acceptance of some of Defendant’s mitigation arguments

along with its discussion of the § 3553(a) factors served as a “functional rejection” of the

others and satisfied its obligations. See Wireman, 849 F.3d at 958–59. Defendant’s

sentence is, therefore, procedurally reasonable.

Proceeding to the question of substantive reasonableness, we “review ‘all

sentences—whether inside, just outside, or significantly outside the Guidelines range—

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under a deferential abuse-of-discretion standard.’” United States v. Smart, 518 F.3d 800,

806 (10th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). A district

court abuses its discretion if “the sentence was ‘arbitrary, capricious, whimsical, or

manifestly unreasonable.’” United States v. Garcia, 946 F.3d 1191, 1211 (10th Cir. 2020)

(quoting United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017)). Defendant

claims his sentence is substantively unreasonable because his “severe and untreated

methamphetamine addiction, the undercover officer’s vague but ominous threats to

[Defendant’s] family, and the fact that [Defendant] has never been suspected of carrying a

firearm or encouraging others to do so” make it excessive. Aplt’s Substitute Br. at 22.

Defendant’s counsel raised these arguments before the district court. The record shows

that the district court not only considered, but credited, some of these arguments at

sentencing and that they caused the district court to grant Defendant a significant

downward departure from the guideline range. Based on these facts, and the totality of the

facts considered by the district court, we conclude there was no abuse of discretion.

Accordingly, Defendant’s sentence is substantively reasonable.

We conclude Defendant’s sentence was procedurally and substantively reasonable.

The judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge