United States v. Shimp

353 F. App'x 740
Court of Appeals for the Third Circuit·Decided November 27, 2009·No. No. 08-2725·Published

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] lence 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] ranting 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)).

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541 F.3d 226 (Third Circuit, 2008)