United States v. Smith , 219 F. App'x 765 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 6, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-5173
(N.D. Okla.)
M AURICO KEJUAN SM ITH , also (D.Ct. No. 06-CR -043-001-JHP)
known as M aurico Kijuan Smith,
Defendant-Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant M aurico K ejuan Smith pled guilty to five criminal counts,
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
including one count of possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A )(iii); one count of possession with
intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); one
count of possession with intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(D); one count of possession of a firearm in furtherance of
drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A); and one count of
possession of a firearm after former conviction of a felony in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). He now appeals his sentence, contending the
district court erred in sentencing him to 322 months imprisonment, which he
claims is an unreasonable sentence under 18 U .S.C. § 3553(a). W e exercise
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm M r.
Smith’s conviction and sentence.
I. Factual Background
After M r. Smith’s arrest and indictment, he pled guilty to all five counts in
the indictment. Following his guilty plea, a probation officer prepared a
presentence report calculating his total offense level at thirty-four under the
United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”), which
included a career offender enhancement based on the fact he had at least two prior
controlled drug offenses. His total base offense level, together with his criminal
history category of VI, resulted in a Guidelines range of 322 to 387 months
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imprisonment.
II. Procedural Background
M r. Smith did not file formal written objections to the presentence report,
and at the sentencing hearing his counsel again stated he had no objections.
However, after M r. Smith made a statement to the court, his counsel asked the
district court to consider the 18 U.S.C. § 3553 factors in conjunction with: (1) his
poverty; (2) his upbringing, including the fact he was raised by his grandparents
due to his mother’s and stepfather’s incarceration; (3) the grouping of his three
prior convictions, including their relative proximity in time; (4) the amount of
time since his last prior conviction; (5) his maturity level during those prior
convictions; (6) his relationship w ith his children; (7) his remorse for his actions;
(8) the fact he pled guilty rather than go to trial; (9) the “horrendous” or
excessive sentence based on his career offender enhancement; (10) his need for
rehabilitation; (11) his argument that an overly excessive sentence might not
protect the public or cause a defendant to respect the laws; (12) the fact he never
“made it beyond the eleventh grade”; 1 and (13) his request for a sixteen-year
sentence. In response, the government argued it received no notice of M r.
Smith’s “downward departure” request and that a decrease in his sentence was not
1
The record indicates M r. Smith obtained a GED and plumbing and
carpentry training.
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warranted given M r. Smith did not learn from his prior three drug convictions and
incarcerations and, instead, continued to deal drugs, including marijuana, cocaine,
and heroin, while possessing a gun.
In addressing M r. Smith’s argument, the district court judge stated he
reviewed and considered the nature and circumstances of the offenses, together
with M r. Smith’s characteristics and criminal history and the advisory Guidelines
calculations. He then sentenced M r. Smith at the low end of the Guidelines range
of 322 to 387 months, to 322 months imprisonment. In so doing, he explicitly
stated that several § 3553(a) factors warranted the specific sentence imposed,
including the fact the sentence w as consistent with the applicable Guidelines; M r.
Smith is a Guidelines career offender; he had at least two prior drug trafficking
convictions, neither of which deterred him from selling drugs again; he carried a
loaded firearm during his criminal activity; he showed no plans to change the
course of his life; the sentence reflected the seriousness of the offense, promoted
respect for the law , and provided just punishment for the offense committed; a
lengthy sentence was necessary to punish him, protect the public, provide a
deterrence to others, and to incapacitate M r. Smith; and the sentence promoted
uniformity in sentencing for similarly situated defendants.
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III. Discussion
On appeal, M r. Smith argues the district court erred in sentencing him “to a
term of incarceration that was plainly unreasonable” and in violation of United
States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296(2004). In support, he contends the district court failed to conduct the required 18
U.S.C. § 3553(a) analysis of sentencing factors and instead sentenced him by
inappropriately relying solely on the G uidelines advisory sentencing range. In so
doing, he argues, the district court considered only the gun and the prior
convictions and not the additional factors he raised at sentencing. He also
contends the district court applied the Guidelines in a mandatory manner because
it stated, “[t]he findings of fact that are pertinent to the sentencing for the record
are a total offense level of 34; criminal history category of 6; possible sentence
from 322 months to 387 months for all ... counts,” and later, in response to the
government’s objection over a lack of notice on a “downward departure,” it
further stated: “I think [defendant’s counsel] was speaking based on what’s in the
presentence report. His argument was directed to the presentence report. I don’t
think he brought up anything new except ... that there was a plea for a ... major
departure.” In conjunction with this argument, M r. Smith generally claims his
322-month sentence is cruel and unusual under the Eighth A mendment because
the proper § 3553 analysis was not conducted by the district court in providing
him a reasonable sentence.
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In addition, M r. Smith suggests certain factors required to be considered
under 18 U.S.C. § 3553(a) are in conflict with the Guidelines. Specifically, he
claims that even though § 3553(a) requires the courts to evaluate the defendant’s
history and characteristics, the G uidelines forbid consideration of the defendant’s
age under U.S.S.G. § 5H1.1; education and vocational skills under § 5H1.2;
mental and emotional condition under § 5H1.3; physical condition, including drug
or alcohol dependence, under § 5H1.4; employment record under § 5H1.5; family
ties and responsibilities under § 5H1.6; socio-economic status under § 5H1.10;
civic and military contributions under § 5H1.11; and lack of guidance as a youth
under § 5H1.12. He also argues that while § 3553(a)(2)(D) requires a sentencing
court to evaluate the need to provide the defendant with education, training,
treatment, or medical care, U.S.S.G. § 5C1.1 contradicts those factors by limiting
the circumstances in which a court can impose a sentence other than
imprisonment.
W e review for reasonableness the sentence imposed and have determined a
presumption of reasonableness attaches to a sentence, like here, which is w ithin
the correctly calculated Guidelines range. See United States v. Kristl, 437 F.3d
1050, 1053-54 (10th Cir. 2006) (per curiam). W e require reasonableness in tw o
respects: “the length of the sentence, as well as the method by which the sentence
was calculated.” Id. at 1055 (emphasis omitted). If the district court “properly
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considers the relevant Guidelines range and sentences the defendant within that
range, the sentence is presumptively reasonable,” but “[t]he defendant may rebut
this presumption by demonstrating that the sentence is unreasonable in light of
the other sentencing factors laid out in § 3553(a).” Id. In determining whether
the district court properly considered the applicable G uidelines, we review its
legal conclusions de novo and its factual findings for clear error. Id. at 1054.
W e have held “[t]here is no question that, in addition to guiding our
reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C.
§ 3553(a) must be considered by the district court itself when imposing a
sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.
2006). W hen the district court allows a defendant to make an argument that any
of these factors warrant a below -Guidelines-range sentence and then imposes a
sentence at the low end of the Guidelines range, we have said this “may fairly be
read as a functional rejection of [his] arguments and a denial of his request for a
below-Guidelines sentence.” Id. W hen addressing a district court’s consideration
of the § 3553(a) factors, “[w ]e do not require a ritualistic incantation to establish
consideration of a legal issue, nor do we demand that the district court recite any
magic words to show us that it fulfilled its responsibility to be mindful of the
factors that Congress has instructed it to consider.” United States v. Lopez-
Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (quotation marks and citation
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omitted), petition for cert. filed (U.S. Jul. 7, 2006) (No. 06-5217). W hile “we
will not demand that a district court recite any magic w ords” to support its
conclusions, neither w ill we “presume the district court weighed a party’s
arguments in light of the § 3553(a) factors where the record provides no
indication that it did so and no clear explanation of the sentence imposed.”
Sanchez-Juarez, 446 F.3d at 1115-16 (quotation marks and citations omitted).
[W ]here a defendant has raised a nonfrivolous argument that the
§ 3553(a) factors warrant a below-Guidelines sentence and has
expressly requested such a sentence, we must be able to discern from
the record that the sentencing judge did not rest on the guidelines
alone, but considered whether the guidelines sentence actually
conforms, in the circumstances, to the statutory factors.
Id. at 1117 (quotation marks, alterations, and citation omitted). However,
“[w]hen the defendant has not raised any substantial contentions concerning non-
Guidelines § 3553(a) factors and the district court imposes a sentence within the
Guidelines range, our post-Booker precedents do not require the court to explain
on the record how the § 3553(a) factors justify the sentence.” Lopez-Flores, 444
F.3d at 1222.
W ith these principles in mind, we note the district court in this case
explicitly considered the factors in § 3553(a), 2 including the nature and
2
18 U.S.C. § 3553(a) provides, in part, that the court shall consider:
(1) the nature and circumstances of the offense and the history and
(continued...)
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circumstances of M r. Smith’s offenses, together with his characteristics and
criminal history. Thus, the record provides a clear “indication” it considered
these requisite factors, together with M r. Smith’s argument for a below-
Guidelines-range sentence based on his poverty, upbringing, incarceration of his
mother and stepfather, education, remorse, children, guilty plea, need for
rehabilitation, maturity during that time, and request for a sixteen-year sentence,
as well as the amount of time since his last prior conviction and the effect of the
career offender enhancement on his sentence. See Sanchez-Juarez, 446 F.3d at
1115-16. W hen the district court imposed a sentence at the low end of the
Guidelines range, it was “a functional rejection of [his] argument[] and a denial
of his request for a below-Guidelines sentence.” Id. at 1115. Because the district
court properly considered the relevant Guidelines range and sentenced M r. Smith
within that range, his sentence is presumptively reasonable and he has clearly not
2
(...continued)
characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available; ...
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
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rebutted this presumption by demonstrating the sentence is unreasonable in light
of the sentencing factors in § 3553(a). See Kristl, 437 F.3d at 1055. Based on
this conclusion and due to judicial economy, we decline to address M r. Smith’s
cursory argument the district court failed to consider the § 3553 factors, resulting
in an unreasonable sentence in violation of the Eighth Amendment prohibition
against cruel and unusual punishment.
In addition, contrary to M r. Smith’s contention, it is clear the district court
applied the Guidelines in an advisory manner, as evidenced by its explicit
statement the G uidelines are now advisory. Therefore, we reject M r. Smith’s
misguided contentions the district court somehow impermissibly applied the
Guidelines in a mandatory manner because of an innocuous statement and use of
certain nomenclature at sentencing. For instance, when the district court stated,
“the findings of fact that are pertinent to the sentencing,” it did so only after both
parties indicated they did not have any objections to the presentence report and
prior to M r. Smith’s counsel’s argument of factors supporting a below-
Guidelines-range sentence. Nor do we believe the district court’s reference to a
“major departure” supports M r. Smith’s argument it applied the Guidelines
mandatorily. The district court simply used the government’s nomenclature in
referring to M r. Smith’s request for a below-Guidelines-range sentence under
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§ 3553 as a “departure,” rather than a “variance.” 3 The district court’s
inadvertent reference to a “departure” does not change the fact it applied the
Guidelines in an advisory manner.
Finally, with regard to M r. Smith’s argument that the § 3553(a) factors are
in conflict with various listed U.S.S.G. Chapter 5 policy statements, the record
does not establish he raised the issue before the district court for its
consideration. W e have long declined to rule on issues not raised in the district
court when the defendant cannot show an impediment precluded his raising the
issue or that the ground not raised constituted plain error resulting in manifest
injustice. See U nited States v. Orr, 864 F.2d 1505, 1508 (10th Cir. 1988).
3
As we recently clarified:
[W ]hen a court reaches a sentence above or below the recommended
Guidelines range through application of Chapters Four or Five of the
Sentencing Guidelines, the resulting increase or decrease is referred
to as a “departure.” When a court enhances or detracts from the
recommended range through application of § 3553(a) factors,
however, the increase or decrease is called a “variance.”
United States v. Atencio, ___ F.3d ___, 2007 W L 102977, at *6 n.1 (10th Cir.
Jan. 17, 2007) (No. 05-2279) (slip op.) (en banc request denied).
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IV. Conclusion
For these reasons, we A FFIRM M r. Smith’s conviction and sentence.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
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