Documente Academic
Documente Profesional
Documente Cultură
No. 06-4020
Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, District
Judge. (CR-03-894)
Submitted:
Decided:
PER CURIAM:
Pursuant to a plea agreement, Mark Anthony Stroupe pled
guilty to conspiracy to commit wire fraud, in violation of 18
U.S.C. 371, 1343 (2000).
pro se.
Stroupe claims the Government breached the plea agreement
by purportedly not allowing him to be debriefed, which in turn
deprived him of the opportunity to receive a downward departure.
He also takes issue with the Governments seeking of sentencing
enhancements that increased his total offense level beyond the
stipulated level of nineteen.1
413 (4th Cir. 1994) (quoting United States v. Ringling, 988 F.2d
504, 506 (4th Cir. 1993)).
discretion
to
determine
whether
Stroupe
had
been
fully
that Stroupe was not compliant with the bargained terms of the plea
agreement, and the district court properly rejected Stroupes
motion
to
enforce
the
Governments
obligations
under
the
agreement.2
Stroupe also challenges his sentence. First, he contends
that his sentence should be evaluated as if it were imposed prior
to United States v. Booker, 543 U.S. 220 (2005), because he entered
into the plea agreement and pled guilty prior to the Supreme
Courts opinion in that case. Therefore, Stroupe maintains that he
was entitled to application of a reasonable doubt standard at
sentencing, despite the fact that the district court recognized the
sentencing guidelines were advisory in light of Booker. Regardless
of when Stroupe entered into the plea agreement, the district court
was
entitled
to
make
the
relevant
factual
findings
by
F.3d 1247, 1252 (10th Cir. 2005); United States v. Mares, 402 F.3d
511, 519 (5th cir.), cert. denied, 126 S. Ct. 43 (2005); see also
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), cert.
denied, 126 S. Ct. 2309 (2006) (consistent with Booker, a district
court shall first calculate (after making the appropriate findings
of fact) the range prescribed by the guidelines).
Stroupes
contention
explicitly
noted
at
is
futile
sentencing
because
that
it
the
found
Furthermore,
district
the
court
challenged
Stroupe
challenges
the
factual
basis
for
the
sentencing for clear error and its legal conclusions, including its
interpretation and application of the sentencing guidelines, de
novo.
United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006);
United States v. Collins, 415 F.3d 304, 315 (4th Cir. 2005).
The
than
the
presentence
report
recommended.
The
district court did not commit clear error in finding this amount of
loss.
the
sentencing
enhancement
under
USSG
See id..
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was
greater
sentencing.
than
necessary
to
achieve
the
purposes
of
However,
(4th Cir. 2006), petition for cert. filed (U.S. June 20, 2006) (No.
05-11659), nor must it robotically tick through 3553(a)s every
subsection, United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006).
Green, 436
We
conclude that Stroupe has failed to rebut the presumption that his
sentence was reasonable.
Finally, Stroupe argues that his sentence violates the Ex
Post Facto Clause because he pled guilty prior to Booker, when the
guidelines were applied as mandatory, and he was sentenced postBooker, under the current advisory guidelines scheme.
At the
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between his guilty plea and the sentencing hearing, and he was
sentenced below this maximum punishment.
Williams, 444 F.3d 250, 254 (4th Cir. 2006) (ruling defendant had
fair warning that distributing cocaine base was punishable by a
prison term of up to twenty years, as spelled out in the United
States Code); United States v. Davenport, 445 F.3d 366, 369-70 (4th
Cir. 2006) (ruling that retroactive application of remedial holding
of Booker did not violate Ex Post Facto Clause; defendant was on
notice of statutory penalty when he committed crime).
When he
In the motion,
Stroupe claims that the six months home detention imposed by the
district court to commence his three years supervised release
term,
when
combined
with
the
fifty-seven-month
term
of
maximum
of
sixty
months
imprisonment.
However,
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United
Thus, no
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
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