United States v. Smith, 4th Cir. (2011)
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Scribd Government DocsUnited States v. Smith, 4th Cir. (2011)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4721
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
ERIC LAMONT SMITH,
Defendant Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:03-cr-00306-RLW)
Submitted:
May 3, 2011
Decided:
May 26, 2011
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles D. Lewis, Richmond, Virginia, for Appellant.
Neil H.
MacBride, United States Attorney, Roderick C. Young, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric
intent
to
Lamont
distribute
Smith
was
cocaine
convicted
of
hydrochloride,
possession
in
with
violation
of
21 U.S.C. 841(a)(1) (2006), and possession of a firearm in
furtherance
of
drug
trafficking
18 U.S.C. 924(c)(1)(A) (2006).
crime,
in
violation
of
He served his active sentence
and was released to supervision on January 30, 2008.
After
learning Smith had been arrested on additional drug and firearm
charges, his probation officer petitioned the district court to
revoke supervised release.
Smith admitted the violations, and
the district court sentenced him to sixty months imprisonment,
the top of the U.S. Sentencing Guidelines Manual (2009) policy
statement range.
Smith noted a timely appeal.
Smith challenges the procedural reasonableness of his
supervised release sentence.
He argues that the district court
failed to adequately consider the factors of 18 U.S.C. 3553(a)
(2006).
He
contends
that
the
district
court
stated
no
particularized reason why the sentence selected was no greater
than necessary, and he argues that the district court failed to
consider
that
Smith
had
received
lengthy
sentence
for
offenses underlying his supervised release violations.
does
not
challenge
the
substantive
sentence.
reasonableness
the
Smith
of
his
In
supervised
reviewing
release,
sentence
this
court
imposed
takes
upon
revocation
more
of
deferential
appellate posture concerning issues of fact and the exercise of
discretion
than
sentences.
reasonableness
United
States v.
review
Moulden,
for
478
[G]uidelines
F.3d
652,
656
(4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d 433,
439 (4th Cir. 2006)).
different
than
reviewed
for
595 F.3d
544,
the
plain
546
Because Smith did not request a sentence
one
ultimately
error.
See
imposed,
United
(4th Cir. 2010);
592 F.3d 572, 578-79 (4th Cir. 2010).
his
States
United
sentence
v.
is
Thompson,
States
v.
Lynn,
To establish plain error,
Smith must show: (1) an error was made; (2) the error is plain;
and (3) the error affects substantial rights.
United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
We
error,
review
including
the
such
sentence
errors
as
for
significant
improperly
procedural
calculating
the
policy statement range, failing to adequately explain the chosen
sentence,
and
failing
to
consider
the
helpful
assistance
contained in the [USSG] Chapter 7 policy statements along with
the
statutory
[18 U.S.C.]
sentences.
and
citation
requirements
3553(a)
of
[18
factors
U.S.C.]
applicable
3583
to
and
the
revocation
Crudup, 461 F.3d at 439 (internal quotation marks
omitted);
552 U.S. 38, 51 (2007).
see
also
Gall
v.
United
States,
A court need not be as detailed or
3
specific when imposing a revocation sentence as it must be when
imposing a post-conviction sentence, but it still must provide
a statement of reasons for the sentence imposed.
Thompson,
595 F.3d at 547 (quoting Moulden, 478 F.3d at 656).
We
conclude
that
the
explained the sentence imposed.
district
court
adequately
[W]hen a judge decides simply
to apply the Guidelines to a particular case, doing so will not
necessarily
require
lengthy
explanation.
States, 551 U.S. 338, 356 (2007).
for
particular
sentence,
and
Rita
v.
United
Here, Smith made no argument
only
asked
that
the
district
court consider that he had received a fourteen-year sentence for
the offenses comprising his supervised release violation.
The
district court clearly considered and rejected this argument, as
reflected by the courts remark that the flagrancy of Smiths
violations
evidenced
the
necessity
of
higher
sentence
to
promote respect for the law and provide for some deterrence.
Accordingly, we affirm the district courts judgment.
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
