United States v. Shimp

353 F. App'x 740
CourtCourt of Appeals for the Third Circuit
DecidedNovember 27, 2009
DocketNo. 08-2725
StatusPublished

This text of 353 F. App'x 740 (United States v. Shimp) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shimp, 353 F. App'x 740 (3d Cir. 2009).

Opinion

OPINION

AMBRO, Circuit Judge.

Shawn Shimp was convicted in the Middle District of Pennsylvania of conspiracy to commit bank robbery and sentenced to 60 months’ imprisonment. He now appeals that sentence as procedurally and substantively unreasonable. We affirm.1

I.

On November 18, 2005, Shawn Shimp and Kenneth Harpster entered Susquehanna Bank and Trust in Beavertown, Pennsylvania. Armed with a pistol and a sawed-off shotgun, Shimp and Harpster forced the bank’s customers and employees to the ground. The men left the bank with $5,426.21 and escaped in a truck driven by Shawn Sassaman.

Shimp was charged with armed bank robbery (in violation of 18 U.S.C. § 2113(d)); conspiracy to commit bank robbery, possess a firearm with an obliterated serial number, and possess a sawed-off shotgun (in violation of 18 U.S.C. § 371); and possession of a firearm in furtherance of a crime of violence (in violation of 18 U.S.C. § 924(c)(1)(A)). He entered into a cooperation plea agreement with the Government and identified Sassa-man and Harpster as his co-conspirators. Shimp also disclosed his involvement in another unsolved attempted robbery that occurred in December 2005. In return for his cooperation, the Government agreed to (1) move to dismiss the possession of a firearm in furtherance of a crime of vio[742]*742lence and armed bank robbery counts, and (2) move for a downward departure pursuant to U.S.S.G. § 5K1.1.

With an offense level of 29 and a criminal history category of I, Shimp’s Guidelines range of imprisonment would have been 87 to 108 months. Because conspiracy carries a maximum penalty of five years’ imprisonment, however, the Guidelines sentence was 60 months. U.S.S.G. § 5Gl.l(a). Prior to sentencing, the District Court granted the Government’s motion for a downward departure and departed by six levels. As a result, Shimp’s adjusted Guidelines range was 33 to 41 months’ imprisonment.

At sentencing, the Government recommended a sentence within the Guidelines, range. Shimp moved for a downward variance in light of his various mental health issues2 and his substantial cooperation with the Government. The District Court denied Shimp’s motion for a downward variance and imposed the statutory maximum of 60 months’ imprisonment (i.e., an upward variance of 19 months).

II.

“Our responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). Our review proceeds in two stages. First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) 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 v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we consider the totality of the circumstances to determine whether the sentence is substantively reasonable. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568.

A sentence within the advisory Guidelines range is more likely to be reasonable than one outside the Guidelines range. United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006). We may not, however, “presume that a sentence is unreasonable simply because it falls outside the” Guidelines range. Tomko, 562 F.3d at 567. Rather, “[wjhere ... a district court decides to vary from the Guidelines’ recommendations, we ‘must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ” Id. at 561 (quoting Gall, 552 U.S. at 51,128 S.Ct. 586).

III.

Shimp first argues that the District Court misapplied § 3553(a)(6), which directs sentencing courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” He asserts the District Court misapplied this factor in two ways: first, by considering the sentence of 60 months’ imprisonment that his co-defendant Harpster received; and second, by regarding Harpster and him as “similarly situated” while failing to take into account his cooperation (compared to Harpster’s lack of cooperation) as a circumstance war[743]*743ranting a disparity between their sentences.

We disagree. Although the “primary goal ... [of] § 3553(a)(6) [is] to promote national uniformity in sentencing rather than uniformity among co-defendants in the same case,” district courts are not prohibited from considering sentencing disparities among co-defendants. United States v. Parker, 462 F.3d 273, 277 (3d Cir.2006). Rather, “[w]here appropriate to the circumstances of a given case, a sentencing court may reasonably consider sentencing disparity of co-defendants in its application of [the § 3553(a) ] factors.” Id. at 278 (citing Koon v. United States, 518 U.S. 81, 109, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)).

We believe the District Court reasonably considered the sentence imposed on Harpster in reaching Shimp’s sentence. Contrary to Shimp’s assertion — and as evidenced by the Court’s six-level downward departure — it did not fail to take into account Shimp’s substantial cooperation as a circumstance potentially warranting a sentence disparity. Although the Court noted that Shimp and Harpster had “engaged in similar conduct and had ... similar criminal record[s],” it also found that Shimp was “the prime mover of the conspiracy.” It emphasized that Shimp had organized the bank robbery — a crime that “involved substantial planning and organizing” — and had “obtained the clothing, zip strips to bind customers and employees of the bank, weapons and the vehicle.” The record confirms that Shimp’s role as the organizer and leader of the conspiracy, as distinguished from the role of Harpster, was the primary basis for the Court’s consideration of the disparity between Harpster’s sentence and Shimp’s Guidelines range. Accordingly, we do not believe the District Court committed procedural error by considering the sentence imposed on Harp-ster.

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Related

Koon v. United States
518 U.S. 81 (Supreme Court, 1996)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. John Baird
109 F.3d 856 (Third Circuit, 1997)
United States v. Lydia Cooper
437 F.3d 324 (Third Circuit, 2006)
United States v. Sean Michael Grier
475 F.3d 556 (Third Circuit, 2007)
United States v. Levinson
543 F.3d 190 (Third Circuit, 2008)
United States v. Tomko
562 F.3d 558 (Third Circuit, 2009)
United States v. Sevilla
541 F.3d 226 (Third Circuit, 2008)

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Bluebook (online)
353 F. App'x 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shimp-ca3-2009.