United States v. Isaiah Gibbs

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shooting was his fault. The child's mother told Lee that Gibbs had been in the car at the time of the shooting, but Lee had not independently confirmed that fact. Lee also testified that the July 4 shooting was in retaliation for a shooting that took place eight days earlier at an apartment complex. Security video from the apartment complex showed Gibbs observing as Sheptock approaches a group of people. Gibbs and Sheptock then move out of camera range and shots are fired. According to Lee, the main suspect in the July 4th shooting was present at the apartment complex and vowed to get back at Sheptock on July 4th. Lee also testified that a witness told him that Sheptock had vowed to retaliate against the person who killed his child, saying something along the lines of, "if they can kill my baby, maybe I can kill theirs." J.A. 71. Lee declined to name the source because "[i]t's still an active investigation." J.A. 71.

II.

Gibbs first argues that Detective Lee's testimony was inaccurate, irrelevant, and inflammatory, and that the district court therefore erred by basing his sentence on Lee's testimony. See Townsend v. Burke, 334 U.S. 736, 741 (1948) ("[T]his prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand."); United States v. Roy, 88 F.4th 525, 530 (4th Cir. 2023) ("It is a significant procedural error for a court to select a sentence based on clearly erroneous facts.") (cleaned up). We disagree with Lee's argument.

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As a preliminary matter, we reject Gibbs' characterization of Lee's testimony. While Lee's testimony did include hearsay and was at times a bit vague, his testimony about the death of the toddler—the most significant part of his testimony—was not inaccurate. There is no question that the child was shot on July 4th and died from her injuries. Lee responded to the scene, where he observed the child's mother slap Gibbs and tell him he was responsible. The mother's statement to Lee that Gibbs had been in the car may have been hearsay, but her statement would appear to be reliable given the circumstances under which it was made. See U.S.S.G. § 6A1.3(a) (A sentencing "court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy."); Fed. R. Evid. 803(2) (excepting from the rule against hearsay statements "relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused").

More importantly, however, even if we assume that Lee's testimony was inaccurate in some respect, resentencing is required only if the sentence imposed was based on the inaccurate information. And in this case, the record simply does not support Gibbs' assertion that the district court based the sentence on Lee's testimony about the death of the child. Although the district court repeatedly mentioned the child's death, the court also repeatedly stated that it was not holding Gibbs responsible for that death. See J.A. 77 ("I tell people in this courtroom that one of the reasons we're concerned with felons in possession of firearms and involved in the drug trade with firearms is that bullets go through windows and walls and doors. And there's a dead 19-month-old that is proof that

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that is true. I'm not holding him responsible. . . . I'm going to state for the record I'm not holding him responsible for that death."); J.A. 77 ("The fact that came to pass on -- for that child on that day doesn't mean he's responsible for that, and I'm not holding him responsible for that. There will be a temptation to read this record and read that into my decision, and I'm not doing it."); J.A. 81 ("I heard the evidence regarding the child. I take it seriously that that child is injured. But the justice for that child is not before this Court today."). There is nothing in the record that would permit this court to reject the district court's own words and conclude that the district court instead sought to hold Gibbs responsible for the death of the child through the sentence imposed. Cf. U.S. ex rel. Welch

v. Lane, 738 F.2d 863, 867 n.5 (7th Cir. 1984) ("Where the judge expressly relied on misinformation, we are unable to determine that he did not mean what he said."). In our view, the record makes it clear that the district court pointed to the death of the child as a concrete example of the dangers posed to the New Bern community by the drug trade and armed drug dealers, but it sentenced Gibbs for his involvement in the drug trade, not for the death of the child. See J.A. 77 ("[S]omething is broken in New Bern and

. . . this defendant is part of that milieux, . . . he's involved in what's going on on the street in New Bern. . . . I'm not holding him responsible for that death. But I am holding him responsible for the conduct that creates that risk."). As this court has explained, "[d]istrict courts are . . . permitted to give voice to the ills faced by the communities in which they sit." Roy, 88 F.4th at 532. The district court in this case did just that—it "g[a]ve voice to the ills faced" by the New Bern community. We see no error.

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III.

Gibbs next contends that the sentence imposed is substantively unreasonable because it "failed to account for Mr. Gibbs's youth, given that all of his offenses were committed when he was 24 or younger, an age at which the frontal lobe is not fully developed." Brief of Appellant at 20. This issue is raised for the first time on appeal, as counsel never raised the brain-development argument asserted on appeal or argued that Gibbs' criminal history overstated his dangerousness because he was a teenager when the offenses were committed.

"A sentence is substantively unreasonable only where under the totality of the circumstances, the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a)." United States v. Devine, 40 F.4th 139, 153 (4th Cir. 2022) (cleaned up). "[A]ny sentence that is within or below a properly calculated Guidelines range is presumptively reasonable." Id. (cleaned up). To rebut this presumption, Gibbs must "demonstrat[e] that the sentence is unreasonable when measured against the § 3553(a) factors." United States v. Everett, 91 F.4th 698, 714 (4th Cir. 2024) (cleaned up).

The record in this case shows that the district court was versed in the facts of the case, and Gibbs' age and his individual circumstances, and the court engaged in a thorough, individualized assessment of Gibbs and his offense conduct in light of the § 3553(a) factors. The court's failure to expressly consider an argument that was never made does not render the middle-of-Guidelines-range sentence unreasonable, and Gibbs has identified no other

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basis for finding the sentence to be substantively unreasonable. Gibbs has failed to rebut the presumption of reasonableness, and we therefore reject this challenge.

IV.

Accordingly, for the foregoing reasons, we hereby affirm Gibbs' sentence. 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 the decision- making process.

AFFIRMED