United States v. Smith ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 6 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5048
(D.C. No. 92-CR-87-E)
DEANDRE SMITH, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and ANDERSON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
DeAndre Smith appeals the sentence imposed following the revocation of
his supervised release. He contends that the sentence imposed was unreasonable.
We affirm.
Mr. Smith was convicted in 1992 of distribution of cocaine base within
1,000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(B),
and 860(a). He was sentenced to 78 months in prison to be followed by 60
months of supervised release. On appeal, this court determined that there was
insufficient evidence to support the conviction for distribution near a playground,
and remanded with directions to vacate the conviction and to enter a conviction
under § 841(a)(1) as a lesser included offense. United States v. Smith, 13 F.3d
380 (10th Cir. 1993). On remand, the district court sentenced Mr. Smith to 70
months incarceration to be followed by 48 months of supervised release.
Mr. Smith was released from prison on June 13, 1997, and began serving
his term of supervised release. On June 4, 1998, the United States Probation
Office filed a petition for revocation of supervised release, alleging that Mr.
Smith had violated his terms of supervised release by failing to submit urine
samples, failing to work regularly, failing to report when questioned by police,
frequenting places where controlled substances were sold, and associating with a
convicted felon. Mr. Smith stipulated to the allegations, and the district court
modified the terms of supervised release to include a term of home detention.
-2-
2
On December 29, 1999, the Probation Office filed a second petition for
revocation of supervised release which included an allegation of a new law
violation of cocaine distribution and an allegation of association with convicted
felons. Mr. Smith and the government agreed that he would stipulate to the
allegation of association in exchange for dismissal of the new law violation
charge. Specifically, Mr. Smith stipulated to allegations that he was present when
someone he knew was shot, that he was associating with that person and another
convicted felon at the time of the shooting, that he knew that the shooting
involved a dispute over a drug transaction, and that Mr. Smith had taken the
injured individual to the hospital.
Although the guideline range found in Chapter 7 of the United States
Sentencing Guidelines is 4 to 10 months, the district court sentenced Mr. Smith to
18 months incarceration,. The court, after holding an evidentiary hearing,
concluded that it was appropriate to sentence beyond the term set forth in the
guidelines.
In this case, there have been repeated violations of that
rule in regard to your associations with known felons.
And for that reason, The Court is going to impose the
sentence that I’m imposing. It is the judgment of The
Court that the term of supervised release shall be
revoked and that the Defendant Deandre Smith be
committed to the custody of the U.S. Bureau of Prisons
for a period of 18 months.
-3-
3
I impose this sentence again because it’s outside -- I
recognize it’s outside of the Chapter 7 sentencing range
and under U.S. versus Lee, The Court has authority to do
so; but it’s because of the repeated incidents of criminal
association that The Court imposes this sentence because
you’ve not been charged with a violation of any law, but
there are certainly strong inferences underlying these
associations. I do not take the inferences into
consideration in this action. I take only the fact of the
violations and the association with the known felons.
Where the district court imposes a sentence in excess of that suggested in
Chapter 7 of the Guidelines this court “will not reverse if it can be determined
from the record to have been reasoned and reasonable.” United States v. Lee, 957
F.2d 770, 774 (10th Cir. 1992). See also United States v. Hurst, 78 F.3d 482, 483
(10th Cir. 1996); United States v. Brooks, 976 F.2d 1358, 1360-61 (10th Cir.
1992).
After a review of the record, we conclude that the 18-month sentence
imposed was both reasoned and reasonable. Mr. Smith has repeatedly violated the
condition of his supervised release which prohibited association with convicted
felons in spite of previous warnings by the Probation Office.
-4-
Accordingly, the judgment of the United States District Court for the
Northern District of Oklahoma is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
-5-