US v. Clevo Shuff

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cr-00008-FDW-1 Copies to all parties and the district court/agency. [998761762].. [11-4426]

Appeal: 11-4426

Document: 37

Date Filed: 01/10/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4426

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CLEVO SHUFF,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:09-cr-00008-FDW-1)

Submitted:

December 30, 2011

Decided:

January 10, 2012

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant.
Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Clevo Shuff was convicted after a jury trial of one
count of conspiracy to distribute and to possess with the intent
to distribute at least fifty grams of cocaine base and aiding
and abetting, in violation of 18 U.S.C. § 2 (2006), 21 U.S.C.A.
§ 841(b)(1)(A) (West 2006 & Supp. 2011), and 21 U.S.C. § 846
(2006) (count one), one count of possession with the intent to
distribute at least five grams of cocaine base and aiding and
abetting,

in

violation

§ 841(a),

(b)(1)(B)

of

U.S.C.

two),

(count

18

and

§ 2

one

and

count

21
of

U.S.C.A.
using

and

carrying a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2006) (count three).
The district court determined that Shuff was a career offender
under the U.S. Sentencing Guidelines Manual (“USSG”) (2009) and
subject

to

a

§ 841(b)(1)(A)

mandatory
on

count

life
one

sentence

based

on

under
his

21

two

U.S.C.A.

prior

North

Carolina state convictions for possession with the intent to
sell or deliver cocaine.

The district court sentenced Shuff to

life in prison on count one, a concurrent term of 360 months’
imprisonment
months’

on

count

imprisonment

two,
on

and

count

a

consecutive

three.

On

term

of

appeal,

sixty
Shuff

challenges his convictions and his sentences on counts one and
two.

We

affirm

Shuff’s

convictions,

2

affirm

the

sentence

on

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count three, vacate the sentences on counts one and two, and
remand for resentencing.
Shuff’s
court

erred

first

in

conspiracies.

claim

failing

of

to

Because

error

Shuff

did

that

the

district

the

instruct

is

jury

on

multiple

a

multiple

not

request

conspiracies instruction in the proceedings below or object to
the jury instructions as given, we review this claim for plain
error.

United

States

(4th Cir. 2010).

v.

Robinson,

627

F.3d

941,

953-54

To succeed under the plain-error standard,

Shuff must establish that the district court erred, that the
error was plain, and that the error affected his substantial
Id. at 954.

rights.

Even if Shuff makes this showing, however,

we retain discretion to deny relief and will not correct a plain
error

unless

not

correcting

the

error

“would

result

in

a

miscarriage of justice or would otherwise seriously affect the
fairness,

integrity

proceedings.”

Id.

or

public

(internal

reputation

quotation

marks,

of

judicial

citation,

and

alteration omitted).
“A court need only instruct on multiple conspiracies
if

such

an

instruction

is

supported

by

the

facts.”

States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).

United

Thus, “[a]

multiple conspiracy instruction is not required unless the proof
at trial demonstrates that appellant[] [was] involved only in
separate

conspiracies

unrelated
3

to

the

overall

conspiracy

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charged

in

the

Date Filed: 01/10/2012

indictment.”

Page: 4 of 9

United

States

v.

Squillacote,

221 F.3d 542, 574 (4th Cir. 2000) (internal quotation marks and
emphases omitted).

We have previously explained “that a single

conspiracy exists[] when the conspiracy had the same objective,
it

had

the

same

goal,

the

same

nature,

the

same

United States

spread, the same results, and the same product.”
v.

Jeffers,

570

F.3d

557,

567

(4th

Cir.

quotation marks and alteration omitted).

geographic

2009)

(internal

After review of the

trial transcript, we conclude that sufficient evidence exists to
demonstrate that the drug-trafficking activities of Shuff and
his

co-conspirators

were

related

a

The district court thus did not commit error—plain
to

instruct

the

charged

single,

indictment.

failing

time

of

conspiracy

otherwise—in

the

part

overarching

or

during

and

jury

in

the

on

multiple

court

plainly

conspiracies.
Shuff

also

argues

that

the

district

erred in failing to instruct the jury on the difference between
a drug conspiracy and a buyer-seller relationship.

During the

pendency of the trial, Shuff had requested that the district
court issue a buyer-seller instruction to the jury.

However,

after the conclusion of the evidence, Shuff withdrew his request
that the district court issue the instruction, and the district
court complied.

Assuming without deciding that the district

court should have given a buyer-seller instruction, we conclude
4

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that

Document: 37

this

claim

doctrine.
1997)

Date Filed: 01/10/2012

is

barred

from

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review

by

the

invited

error

United States v. Jackson, 124 F.3d 607, 617 (4th Cir.

(“The

invited

error

doctrine

recognizes

that

a

court

cannot be asked by counsel to take a step in a case and later be
convicted of error, because it has complied with such request.”
(internal quotation marks omitted)).

Further, Shuff fails to

establish the presence of “extraordinary circumstances like an
apparent miscarriage of justice or doubt as to the integrity of
the judicial process” that would warrant our review of an error
United States v. Hickman, 626 F.3d

invited by an appellant.

756, 772 (4th Cir. 2010), cert. denied, 132 S. Ct. 469 (2011)
(internal quotation marks omitted).
Next, Shuff argues that the district court erred in
informing the jury pool during the voir dire proceeding about a
legend

that

courthouse.

the

ghost

of

a

Confederate

soldier

haunted

the

Although we ordinarily would review for abuse of

discretion the manner in which the district court conducted the
jury

voir

dire,

United

States

v.

Hsu,

364

F.3d

192,

203

(4th Cir. 2004), because Shuff did not object to the court’s
telling of the legend, we review this claim for plain error
only.

Robinson, 627 F.3d at 953-54.
After review of the record, we conclude that Shuff

fails to establish any plain error that affected his substantial
rights.

During the voir dire proceeding, when counsel for Shuff
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and the Government were deciding whether to exercise any strikes
against

potential

jurors,

the

district

court

gave

a

lengthy

discourse in which it described the history of the courthouse
and

the

land

on

which

it

was

situated.

As

part

of

the

narrative, the court mentioned that a building on the land had
been seized by the Confederacy in 1861 and that there existed a
legend

that

hallways.

a
In

“Confederate
Shuff’s

view,

ghost”
it

was

roamed
error

the

for

courthouse

the

court

to

mention the legend because, in so doing, the court necessarily
conveyed

to

the

jury

pool

that

“someone

or

something

[was]

watching and interested in the outcome” of the trial and that
the “desired outcome [of the trial was] not the freedom of a
black man.”
record

Shuff, however, fails to point to anything in the

that

would

support

these

imaginative

assertions.

Further, after a review of the transcript of the jury voir dire,
we are satisfied that no reasonable observer would conclude that
there was even the appearance that Shuff’s race played a role in
See United States v. Kaba, 480 F.3d 152, 156-57

the proceeding.
(2nd Cir. 2007).

This claim is therefore without merit.

Finally, Shuff argues that the district court erred in
imposing

the

enhanced

mandatory

minimum

sentence

of

life

imprisonment on count one and in sentencing him as a career
offender on count two because the prior convictions on which
those sentences were based were not punishable by imprisonment
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for terms exceeding one year.

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A defendant is properly subject

to a mandatory minimum term of life imprisonment if he commits a
violation of 21 U.S.C.A. § 841(b)(1)(A) “after two or more prior
convictions

for

a

felony

drug

21 U.S.C.A. § 841(b)(1)(A).

offense

have

become

final.”

An offense does not qualify as a

“felony drug offense” unless it is “punishable by imprisonment
for more than one year under any law of the United States or of
a State or foreign country that prohibits or restricts conduct
relating to narcotic drugs, mari[j]uana, anabolic steroids, or
depressant

or

stimulant

(West Supp. 2011).

substances.”

21

U.S.C.A.

§ 802(44)

A defendant is properly designated a career

offender if: (1) he was at least eighteen years old at the time
he committed the instant offense; (2) the instant offense is a
felony crime of violence or controlled substance offense; and
(3) he “has at least two prior felony convictions of either a
crime

of

violence

§ 4B1.1(a).

An

violence”

a

or

“punishable

by

or

a

offense

controlled
does

“controlled
imprisonment

substance

not

qualify

substance
for

a

offense.”
as

offense”

term

a

“crime

unless

exceeding

USSG

one

it

of
is

year.”

USSG § 4B1.2(a).
Shuff contends that, in light of this court’s en banc
decision

following

rehearing

649 F.3d

237

Cir.

(4th

in

2011)

United

States

(en banc),

his

v.

Simmons,

prior

state

convictions for possession with the intent to sell or deliver
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cocaine were not punishable by terms of imprisonment exceeding
one

year.

See N.C.

Gen.

Stat.

§ 15A-1340.17(c)-(d)

(2009)

(setting forth minimum and maximum sentences applicable under
the

North

Carolina

Structured

Sentencing

Act).

When

Shuff

raised this argument in the district court, it was foreclosed by
our panel decisions in United States v. Simmons, 635 F.3d 140,
146 (4th Cir. 2011) (holding that, to determine whether a North
Carolina conviction for a crime is punishable by a prison term
exceeding

one

year,

a

court

is

to

“consider

the

maximum

aggravated sentence that could be imposed for that crime upon a
defendant with the worst possible criminal history” (internal
quotation marks and emphasis omitted)), and United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005) (same).
decision

in

Simmons

reversed

this

precedent,

The en banc

holding

that

a

prior North Carolina offense is punishable by imprisonment for a
term

exceeding

eligible

for

one

such

year
a

only

if

sentence

the

under

particular
the

defendant

applicable

is

statutory

scheme, taking into account his criminal history and the nature
of his offense.

Simmons, 649 F.3d at 241-47.

Applying

the

en

banc

decision

in

Simmons

here,

we

conclude after review of the state judgments that Shuff’s prior
North Carolina convictions for possession with the intent to
sell

or

deliver

cocaine

were

imprisonment exceeding one year.
8

not

punishable

by

terms

of

The offenses were both class H

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felonies, and the state judgments reveal that Shuff had a prior
record in levels II and III and was sentenced in the presumptive
range for each offense.

Under the North Carolina Structured

Sentencing Act, Shuff could not have been imprisoned for terms
exceeding one year for his prior convictions.
§ 15A-1340.17(c)-(d).

N.C. Gen. Stat.

The convictions were therefore not proper

predicates for purposes of 21 U.S.C.A. § 841(b)(1)(A) or the
career offender Guideline.
Accordingly, we affirm Shuff’s convictions.

We vacate

Shuff’s life sentence on count one and the 360-month sentence on
count two, and we remand the case to the district court for
resentencing.

Shuff does not challenge his 60-month sentence on

count three, and we therefore affirm it.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

9