United States v. Neil Shuttleworth, 4th Cir. (2013)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 12-4841
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
NEIL P. SHUTTLEWORTH,
Defendant - Appellant.
No. 12-4844

v.
No. 12-4845

v.
No. 12-4846

v.
No. 12-4848

v.
Appeals from the United States District Court for the District
of South Carolina, at Spartanburg. J. Michelle Childs, District
Judge.
(7:12-cr-00242-JMC-1;
7:11-cr-00161-JMC-1;
7:11-cr00755-JMC-1; 7:11-cr-02070-JMC-1; 7:11-cr-02182-JMC-1)
Submitted:
June 24, 2013
Decided:
Before WYNN, DIAZ, and THACKER, Circuit Judges.

2
July 25, 2013
Affirmed by unpublished per curiam opinion.
Michael
Chesser,
Aiken,
South
Carolina,
for
Appellant.
Elizabeth
Jean
Howard,
Assistant
United
States
Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Neil P. Shuttleworth pled guilty to five separate
indictments
charging
him
with
six
counts
of
unarmed
bank
robbery, in violation of 18 U.S.C. 2113(a) (2006). His cases

were
consolidated
pursuant
to
Fed.
R.
Crim.
20. *
P.
At
sentencing, the district court granted Shuttleworth a downward

departure
based
received
on
his
assistance
below-Guidelines
imprisonment.
to
authorities,
sentence
of
120
and
he
months
On appeal, Shuttleworths counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),

certifying
that
there
are
no
meritorious
issues
for
appeal.
Shuttleworth has filed a pro se supplemental brief arguing that

(1)
the
district
court
erred
in
imposing
sentencing
enhancement based on Shuttleworths alleged threat of death to a

bank teller, and (2) the Government used information he shared
under
his
violation
cooperation
of
U.S.
agreement
Sentencing
to
enhance
Guidelines
his
Manual
sentence,
in
1B1.8(a)
(2011). Finding no error, we affirm.

We review Shuttleworths sentence for reasonableness,
applying a deferential abuse-of-discretion standard. Gall v.
Under Rule 20, transfer of prosecution is permitted from a

district where an indictment is pending to a district court
where a defendant is arrested upon consent by the defendant and
agreement by the United States attorneys.
United States, 552 U.S. 38, 51 (2007).

the
sentence
for
significant
We begin by reviewing
procedural
error,
including
improper calculation of the Sentencing Guidelines range, failure

to consider sentencing factors under 18 U.S.C. 3553(a) (2006),
sentencing
based
on
clearly
erroneous
facts,
or
failure
adequately explain the sentence imposed. Id. at 51.

have
determined
procedural
that
error,
the
reasonableness
of
we
the
sentence
must
sentence,
is
free
consider
of
Once we
significant
the
tak[ing]
to
substantive
into
account
the
totality of the circumstances. Gall, 552 U.S. at 51. If the

sentence is within the appropriate Guidelines range, we apply a
presumption on appeal that the sentence is reasonable. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
Such
presumption
is
rebutted
only
when
the
defendant
demonstrates that the sentence is unreasonable when measured

against the 3553(a) factors. United States v. Montes-Pineda,
445
F.3d
375,
379
(4th
Cir.
2006)
(internal
quotation
marks
omitted).
Shuttleworth first contends that the district court
improperly imposed a two-level enhancement based on his alleged
death
threat
district
to
courts
one
of
the
application
bank
of
tellers.
the
In
assessing
Guidelines,
this
the
court
reviews the district courts factual findings for clear error

and its legal conclusions de novo. United States v. Layton, 564
5
F.3d
330,
334
(4th
Cir.
2009).
Generally,
the
test
is
an
objective onewhether the defendants statement would instill a

fear of death in a reasonable victim, not the reaction of the
particular teller[.] United States v. Jennings, 439 F.3d 604,
613 (9th Cir. 2006); see also United States v. Franks, 183 F.3d
335, 337-38 (4th Cir. 1999); United States v. Gibson, 155 F.3d
844,
846
(7th
appropriately
Cir.
1998).
applied.
We
To
conclude
the
the
extent
enhancement
Shuttleworth
was
argues
counsel was ineffective in this regard, ineffectiveness does not

conclusively appear on the record. United States v. Powell, 680
F.3d 350, 359 (4th Cir. 2012).
Shuttleworth also argues in his pro se supplemental
brief that the Government used information he shared under his
cooperation agreement to enhance his sentence, in violation of
USSG
1B1.8(a).
Because
Shuttleworth
did
not
preserve
this
issue in the district court, we review for plain error. United

States
v.
summarily
McQueen,
dismiss
108
this
F.3d
64,
claim,
and
65-66
the
(4th
Cir.
attendant
1997).
We
ineffective
assistance of counsel claim, because Shuttleworth had neither a

plea agreement nor a cooperation agreement in these cases.
Our review of the record indicates no procedural error
in
the
imposition
of
Shuttleworths
sentence.
Further,
the
district court adequately explained the basis for Shuttleworths

below-Guidelines range sentence based on the goals of 18 U.S.C.
6
3553(a),
and
we
find
nothing
to
rebut
the
presumption
of
substantive reasonableness.
In accordance with Anders, we have reviewed the entire
record in each case and find no meritorious issues for appeal.
We
therefore
affirm
Shuttleworths
convictions
and
sentence.
This court requires counsel to inform Shuttleworth, in writing,

of his right to petition the Supreme Court of the United States
for further review. If Shuttleworth requests that a petition be
filed but counsel believes such a petition would be frivolous,
counsel
may
move
in
this
court
for
leave
to
withdraw
from
representation. Counsels motion must state that a copy thereof

was
served
on
Shuttleworth.
We
dispense
with
oral
argument
because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid in
the decisional process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

UNITED STATES OF AMERICA,

UNITED STATES OF AMERICA,

UNITED STATES OF AMERICA,

UNITED STATES OF AMERICA,

June 24, 2013

Before WYNN, DIAZ, and THACKER, Circuit Judges.

July 25, 2013

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

robbery, in violation of 18 U.S.C. 2113(a) (2006). His cases

sentencing, the district court granted Shuttleworth a downward

On appeal, Shuttleworths counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

Shuttleworth has filed a pro se supplemental brief arguing that

enhancement based on Shuttleworths alleged threat of death to a

(2011). Finding no error, we affirm.

Under Rule 20, transfer of prosecution is permitted from a

United States, 552 U.S. 38, 51 (2007).

improper calculation of the Sentencing Guidelines range, failure

adequately explain the sentence imposed. Id. at 51.

totality of the circumstances. Gall, 552 U.S. at 51. If the

demonstrates that the sentence is unreasonable when measured

reviews the district courts factual findings for clear error

objective onewhether the defendants statement would instill a

counsel was ineffective in this regard, ineffectiveness does not

issue in the district court, we review for plain error. United

assistance of counsel claim, because Shuttleworth had neither a

district court adequately explained the basis for Shuttleworths

This court requires counsel to inform Shuttleworth, in writing,

representation. Counsels motion must state that a copy thereof

because the facts and legal contentions are adequately presented

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