FILED

United States Court of Appeals

Tenth Circuit

June 1, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re: VAUDA VIRGLE SHIPP, JR.,

Petitioner,

No. 10-5056

(D.C. No. 4:04-CR-00214-CVE-1)

(N.D. Okla.)

ORDER

Before HENRY, EBEL, and O’BRIEN, Circuit Judges.

Vauda Virgle Shipp, Jr. seeks a writ of mandamus directing the district

court to resentence him in accordance with our remand order in United States v.

Shipp, 589 F.3d 1084 (10th Cir. 2009). He has also filed a motion for bail

pending appeal under 18 U.S.C. § 3143(b) and § 3145(c). 

On May 19, 2010, the district court on remand resentenced Shipp to

180 months’ imprisonment under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e), for his conviction under § 922(g) of being a felon in

possession of a firearm. Shipp argues the new sentence was imposed in

contravention of our remand order. In his earlier case, we reversed the district

court’s denial of habeas relief and directed it to resentence Shipp without the

armed career criminal classification based on the Supreme Court’s decision in

Chambers v. United States, 129 S. Ct. 687 (2009), that a conviction such as

Appellate Case: 10-5056 Document: 01018432262 Date Filed: 06/01/2010 Page: 1 
-2-

Shipp’s 1987 conviction for escape cannot serve as a predicate offense under the

ACCA. Shipp’s new sentence under the ACCA is based, in part, on a 1969

burglary conviction that, although referenced in the presentence report, was not

designated as a predicate offense for purposes of his original classification as an

armed career criminal. Shipp has appealed his new sentence in case no. 10-5069.

“[A] writ of mandamus is a drastic remedy, and is to be invoked only in

extraordinary circumstances.” In re Cooper Tire & Rubber Co., 568 F.3d 1180,

1186 (10th Cir. 2009) (internal quotation marks omitted). Shipp correctly notes

that a writ of mandamus may be appropriately used “to confine an inferior court

to a lawful exercise of its prescribed jurisdiction.” Id. (internal quotation marks

omitted). If a district court were to wholly disregard this court’s mandate, such

action might justify use of the writ. Importantly, however, a writ of mandamus

may not issue so long as the party seeking the writ has “other adequate means to

attain the relief he desires.” Id. at 1187. Here, Shipp has other adequate means,

as demonstrated by his appeal of the new sentence. Thus, he is not entitled to

mandamus relief.

As for his request for bail pending appeal, we agree with the government

that Shipp has failed to show by clear and convincing evidence that he is not a

flight risk or a danger to any other person or the community, as required under

§ 3143(b). Nor has he demonstrated exceptional reasons why his detention is not

appropriate, as required under § 3145(c). We thus conclude he is not entitled to

Appellate Case: 10-5056 Document: 01018432262 Date Filed: 06/01/2010 Page: 2 
-3-

be released during the pendency of his appeal. See United States v. Affleck,

765 F.2d 944, 946 (10th Cir. 1985) (explaining that the defendant bears the

burden to show he is eligible for bail pending appeal). 

The petition for a writ of mandamus and the motion for bail are both

DENIED. Mr. Shipp’s motion to consolidate this case with case no. 10-5069

is DENIED as moot. His motion to proceed in forma pauperis is GRANTED.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

Appellate Case: 10-5056 Document: 01018432262 Date Filed: 06/01/2010 Page: 3