United States of America v. Shawn Cuff

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4085
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UNITED STATES OF AMERICA
v.
SHAWN CUFF,
Appellant
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On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 98-cr-00038-001)
District Judge: Honorable Sue L. Robinson
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Submitted Pursuant to Third Circuit LAR 34.1(a)
May 28, 2009
Before: FISHER, CHAGARES and COWEN, Circuit Judges.
(Filed: July 28, 2009)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Shawn Cuff appeals from the District Court’s judgment of sentence, arguing that
the District Court committed procedural error by failing to consider the crack cocaine

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amendments to the United States Sentencing Guidelines when it sentenced him to twelve
months of imprisonment for violating the terms of his supervised release. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
In 1998, Cuff pleaded guilty to one count of possession with intent to distribute
five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B),
and one count of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1), and, in 1999, was sentenced to ninety months of imprisonment and a term of
supervised release for those offenses. In August 2007, while Cuff was on supervised
release, the United States Probation Office filed a petition in the United States District
Court for the District of Delaware, asserting that he had recently been arrested for certain
criminal conduct and, as a result, had violated a condition of his supervised release,
namely, that he not commit another federal, state, or local crime. In June 2008, Cuff
pleaded guilty to one count of possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and, in September of that year, the
District Court held a sentencing hearing during which it addressed both his new
conviction and the revocation of his supervised release. The District Court sentenced

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Cuff to 144 months of imprisonment for his conviction and an additional twelve months
of imprisonment for his violation of supervised release to run consecutively.
Cuff filed a timely appeal from the judgment of sentence, challenging only the
District Court’s decision to impose a twelve-month term of imprisonment for his violation
of supervised release.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review a sentence
imposed upon revocation of supervised release for reasonableness. See United States v.
Bungar, 478 F.3d 540, 542 (3d Cir. 2007). To this end, we must ensure that the district
court committed no significant procedural error and, if it has not, that the sentence is
substantively reasonable. Gall v. United States, 128 S. Ct. 586, 597 (2007); see also
United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008) (stating that on appellate
review, we are “to ensure that a substantively reasonable sentence has been imposed in a
procedurally fair way”).
III.
Cuff argues that the District Court committed procedural error because, in
imposing a twelve-month term of imprisonment upon the revocation of his supervised
release, it failed to take into account that since his original sentence in 1999 the United
States Sentencing Commission lowered the recommended Guidelines ranges for crack

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Cuff does not challenge the substantive reasonableness of his sentence and we1
discern no substantive error as to his sentence.
Cuff also makes several passing references on appeal to Kimbrough v. United2
States, 128 S. Ct. 558 (2007), but, again, he did not previously challenge the
crack/powder cocaine disparity with respect to his sentence for violating supervised
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cocaine offenses under Amendment 706. Specifically, he contends that the District Court
should have considered a lesser sentence for his supervised release violation because he
did not have the opportunity to file a motion for reduction of sentence under 18 U.S.C.
§ 3582(c)(2) with respect to his first cocaine base offense, given that he had already
served his full term of imprisonment, and that the District Court should have recognized
this issue in considering the relevant Guidelines amendments and policy statements. We
disagree.1
Cuff acknowledges that he did not make this argument to the District Court. In
reaching an appropriate sentence, a district court must address any “colorable arguments”
that the parties may have asserted, United States v. Sevilla, 541 F.3d 226, 232 (3d Cir.
2008), but “is not required to manufacture grounds for the parties or search for grounds
not clearly raised on the record in a concise and timely manner,” United States v. Dragon,
471 F.3d 501, 505 (3d Cir. 2006). See United States v. Cooper, 437 F.3d 324, 332 (3d
Cir. 2006) (stating that the district court should consider “any sentencing grounds
properly raised by the parties”). Here, the District Court adequately addressed the parties’
arguments and did not err by failing to identify sua sponte the specific argument that Cuff
now asserts for the first time on appeal. See, e.g., Dragon, 471 F.3d at 505.2

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release, nor is there is any indication in the record that the District Court believed it was
unable to vary below the recommended Guidelines range on that ground.
U.S.S.G. § 1B1.10(a) states in relevant part that where “a defendant is serving a3
term of imprisonment, and the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the Guidelines Manual” listed
in that section, the district court may reduce the defendant’s term of imprisonment under
18 U.S.C. § 3582(c)(2). At the time Cuff was sentenced for his supervised release
violation, U.S.S.G. § 1B1.10(c) included Amendment 706.
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In addition, Cuff’s argument rests on the faulty premise that the District Court,
under the circumstances of this case, should have considered U.S.S.G. § 1B1.10 as an
“applicable” or “pertinent” policy statement when imposing sentence for his violation of
supervised release. See generally 18 U.S.C. § 3553(a)(4)(B), (a)(5) (stating that a district3
court must consider the pertinent policy statements that the United States Sentencing
Commission promulgates under 28 U.S.C. § 994(a)(2) and (a)(3)). U.S.S.G. § 1B1.10
plainly applies only to a defendant who is currently “serving a term of imprisonment,”
while Cuff, at the time of his supervised release revocation, had already been released
from his term of imprisonment imposed in 1999. Moreover, the commentary to U.S.S.G.
§ 1B1.10 states: “Only a term of imprisonment imposed as part of the original sentence is
authorized to be reduced under this section. This section does not authorize a reduction in
the term of imprisonment imposed upon revocation of supervised release.” U.S.S.G.
§ 1B1.10 cmt. n.4; see, e.g., United States v. Forman, 553 F.3d 585, 588-89 (7th Cir.
2009) (rejecting the argument that Amendment 706 entitled the defendant, who had
already served his full term of imprisonment, to a reduced sentence for violating his

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supervised release). And Cuff’s reliance on certain commentary pertaining to motions for
early termination of supervised release is misplaced because, as he acknowledges, he
“was not before the District Court in any fashion for an early termination or modification
of supervised release.” (Appellant’s Br. 13.) Thus, Cuff fails to establish any error on
the part of the District Court and we reject his argument to the contrary.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.

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