UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5107

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSHUA DAVID HOUDERSHELDT,

Defendant – Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. Joseph R. Goodwin, 

Chief District Judge. (2:09-cr-00096)

Submitted: May 25, 2010 Decided: September 9, 2010

Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, 

Appellate Counsel, Edward H. Weis, Assistant Federal Public 

Defender, Charleston, West Virginia, for Appellant. Charles T. 

Miller, United States Attorney, Monica K. Schwartz, Assistant 

United States Attorney, Charleston, West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Joshua David Houdersheldt pled guilty to one count of 

conspiracy to acquire and obtain possession of oxycodone by 

fraud and one count of attempt to acquire and obtain possession 

of oxycodone by fraud, both in violation of 21 U.S.C. § 846 

(2006), and was sentenced to seventy months in prison. On 

appeal, Houdersheldt argues that the district court erred by 

applying a four-level enhancement to his total offense level for 

his role as an organizer and leader of a conspiracy involving 

five or more people, pursuant to the U.S. Sentencing Guidelines 

Manual (“USSG”) § 3B1.1(a) (2008). For the reasons that follow, 

we affirm Houdersheldt’s sentence. 

In his plea agreement, Houdersheldt waived his right 

to appeal his sentence on all grounds, except a properly 

preserved challenge to the district court’s determination of the 

sentencing Guidelines range. He also agreed to a stipulation of 

facts, which explained that he had forged prescriptions for 

oxycodone using a prescription pad belonging to his father, and 

that the prescriptions were not authorized. The stipulation 

further stated that Houdersheldt twice drove individuals to a 

pharmacy, where those individuals submitted the prescriptions, 

obtained the Oxycodone, turned it over to Houdersheldt, and were 

paid fifty dollars for the transaction. (J.A. 23-24). The 

stipulation noted that Houdersheldt participated in these 
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activities to support his own drug addiction, and explained that 

he “lead [sic], organized and directed” the two other 

individuals involved in the transactions. It further described 

that Houdersheldt participated in “a series of similar 

transactions beginning in at least 2008 and continuing to the 

date of his arrest,” and during that time he obtained 92,400 

milligrams of oxycodone, which was used by himself and others. 

Houdersheldt admitted in the stipulation that he “lead [sic] and 

directed at least five individuals who were involved in the 

criminal activity,” and that he “personally used approximately 

81,900 milligrams of the oxycodone” obtained during the 

conspiracy. Finally, Houdersheldt admitted that he “distributed 

approximately 10,500 milligrams of the oxycodone obtained as a 

result of the conspiracy, to others, in part for profit.” 

Because of the distribution of oxycodone to others, the parties 

stipulated that that the applicable Guideline for establishing 

the base offense level would be USSG § 2D1.1.

On appeal, Houdersheldt asserts that “[w]hile [he] was 

a leader or organizer of the conspiracy [to obtain oxycodone], 

he was not a leader or organizer of the drug selling operation, 

the offense of stipulation.” He argues that this alleged error 

produced an incorrect calculation of the advisory Guidelines 

range, resulting in a procedurally unreasonable sentence. 
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When reviewing a sentence on appeal, “[a]ppellate 

courts are required to give due deference to the district 

courts' application of the sentencing guidelines.” United 

States v. Gormley, 201 F.3d 290, 293-94 (4th Cir. 2000). Where, 

as here, the facts are undisputed and the issue turns primarily 

on the legal interpretation of a term as used in the Guidelines, 

the standard of review “moves closer to de novo review.” Id.; 

see also United States v. Fullilove, 388 F.3d 104, 106 (4th Cir. 

2004) (“Because the facts here are undisputed, the only question 

before us is one of guidelines application, a question on which 

our standard of review approaches de novo.”).*

Despite Houdersheldt’s contentions, the introductory 

commentary to Chapter 3, Part B controls disposition of this 

appeal. The commentary expressly states that “[t]he 

determination of a defendant’s role in the offense is to be made 

on the basis of all conduct within the scope of § 1B1.3 

(Relevant Conduct), i.e., all conduct included under 

§ 1B1.3(a)(1)-(4), and not solely on the basis of elements and 

 * In United States v. Love, 134 F.3d 595 (4th Cir. 1998), 

this court held that “a district court’s determination of a 

defendant’s role in an offense” is reviewed for clear error, 

citing United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 

1989). However, in both of those cases, the determination 

turned on the application of the relevant facts. Here, the 

facts are undisputed, and Houdersheldt expressly admits that he 

was an organizer and leader of the conspiracy. The issue raised 

in this appeal thus turns on a legal interpretation of § 3B1.1.
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acts cited in the count of conviction.” USSG ch. 3, pt. B, 

intro. cmt. The term “offense” is defined in the application 

notes to § 1B1.1 as “the offense of conviction and all relevant 

conduct under § 1B1.3 (Relevant Conduct) unless a different 

meaning is specified or is otherwise clear from the context.” 

USSG § 1B1.1, cmt. n.1(H). 

Here, although the parties stipulated to using § 2D1.1 

to determine the base offense level, there was no stipulation 

regarding enhancements under Chapter Three of the Guidelines. 

As the plain language of the Guidelines states, the offense of 

conviction, not the offense of stipulation, and all relevant 

conduct that occurred during commission of the offense of 

conviction are to be considered for the purpose of determining 

whether an aggravating role enhancement is appropriate. 

Houdersheldt conceded in the stipulation of facts that he was a 

leader and organizer of the conspiracy, and again admitted that 

in his sentencing memorandum to the district court and in his 

brief on appeal. As we stated in United States v. Fells, a 

defendant’s “role determination is to be based, not solely on 

his role in the counts of conviction, but on his role in the 

entirety of his relevant conduct.” 920 F.2d 1179, 1184 (4th 

Cir. 1990). Houdersheldt himself expressly admitted that both 

the offense of conviction and his relevant conduct relating to 

that offense constituted leadership of the criminal activity. 
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Accordingly, we affirm Houdersheldt’s sentence. 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