United States v. Bryan Timothyleenard Smith , 255 F. App'x 391 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 06-14881
Non-Argument Calendar
________________________
D. C. Docket No. 05-00527-CR-T-23MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN TIMOTHYLEENARD SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 13, 2007)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Bryan Timothyleenard Smith appeals his convictions, after a jury trial, for
conspiracy to obstruct commerce, a violation of 18 U.S.C. §§ 1951, 2; obstruction
and attempted obstruction of commerce by robbery, a violation of 18 U.S.C. §§
1951, 2; and carrying a firearm, which was discharged and brandished during a
crime of violence, a violation of 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(A)(iii), (2).
Smith also challenges his sentence of 140 years’ imprisonment. On appeal, Smith
argues the evidence was insufficient to support his convictions, and also claims
that the district court improperly determined the Sentencing Guidelines range and
imposed an unreasonable sentence.1 After careful review, we affirm.
I.
We review challenges to the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the jury’s verdict and drawing all
reasonable inferences in favor of the verdict. United States v. Hernandez, 433 F.3d
1328, 1332 (11th Cir. 2005), cert. denied 547 U.S. 1047 (2006). “It is not
necessary that the evidence exclude every reasonable hypothesis of innocence or
1
Additionally, Smith argues that the district court’s factual determinations at sentencing,
made by a preponderance of the evidence, violated his Sixth Amendment right to a jury trial. This
argument is foreclosed by our decision in United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir.
2005). We also will not review Smith’s ineffective-assistance-of-counsel claim, made for the first
time on direct appeal, given the insufficiency of the record. See United States v. Verbitskaya, 406
F.3d 1324, 1337 (11th Cir. 2005) (“Except in the rare instance when the record is sufficiently
developed, we will not address claims for ineffective assistance of counsel on direct appeal.”), cert.
denied, 126 S. Ct. 1095 (2006). As for Smith’s request to overturn the Supreme Court’s decision
in Deal v. United States, 508 U.S. 129, (1993), it is well-settled that we are powerless to do that and
are bound to follow Supreme Court precedent. United States v. Greer, 440 F.3d 1267, 1275-76 (11th
Cir. 2006); United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006). Finally, we are
unpersuaded by Smith’s suggestion that his sentence, which exceeded neither the statutory range
nor the Guidelines range, violates the Eighth Amendment to the Constitution as cruel and unusual
punishment. Cf. United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005) (“In general, a
sentence imposed within the limits imposed by statute is neither excessive nor cruel and unusual
under the Eighth Amendment.”).
2
be wholly inconsistent with every conclusion except that of guilt,” United States v.
Harris, 20 F.3d 445, 453 (11th Cir. 1994), because “[a] jury is free to choose
among reasonable constructions of the evidence,” United States v. Vera, 701 F.2d
1349, 1357 (11th Cir. 1983). To the extent that some of Smith’s sufficiency
challenges were not raised below -- in moving for a judgment of acquittal, Smith
did not argue that the evidence failed to establish the requisite interstate commerce
nexus -- our review is for plain error. See United States v. Bichsel, 156 F.3d 1148,
1150 (11th Cir. 1998). Plain error is only found where: (1) there is an error; (2)
the error is obvious; (3) the error affects the defendant’s substantial rights; and (4)
the error “seriously affects the fairness, integrity, or public reputation of a judicial
proceeding.” United States v. Olano, 507 U.S. 725, 732 (1993).
The standards of review for Smith’s sentencing claims are straightforward.
We accept a district court’s factual findings under the Guidelines, unless those
findings are clearly erroneous. United States v. Jordi, 418 F.3d 1212, 1214 (11th
Cir. 2005). We deferentially review the final sentence imposed by the district
court for reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th
Cir. 2005). Even so, we do not presume reasonable a sentence within the properly
calculated Guidelines range. See United States v. Hunt, 459 F.3d 1180, 1185 (11th
3
Cir. 2006). However, we ordinarily expect a sentence within the guideline range to
be reasonable. United States v. Talley, 431 F.3d 784, 787-88 (11th Cir. 2005).
II.
The relevant facts are these. On February 22, 2006, in a superseding
indictment, Smith and Jamail Hogan, who is Smith’s half-brother, were charged
with: (1) conspiring to obstruct commerce by robbery, in violation of 18 U.S.C. §§
1951 and 2 (Count One); (2) carjacking with serious bodily injury, in violation of
18 U.S.C. §§ 2119, 2119(2) and 2 (Count Two); (3) three counts of carrying and
brandishing a firearm during and in relation to a crime of violence, in violation of
18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(ii), and 2 (Counts Three, Eight, and Ten);
(4) three counts of obstructing commerce by robbery, in violation of 18 U.S.C. §§
1951 and 2 (Counts Four, Six, and Nine); (5) three counts of carrying and
discharging a firearm during and in relation to a crime of violence, in violation of
18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(iii), and 2 (Counts Five, Seven, and
Twelve); and (6) attempting to obstruct commerce by robbery, in violation of 18
U.S.C. §§ 1951 and 2 (Count Eleven). Smith pled not guilty to all charges and
proceeded to a jury trial.2
2
After the district court granted the co-defendants’ motion to sever trial, Hogan also pro-
ceeded to a separate jury trial, after which he was sentenced to a total term of imprisonment of 242
years.
4
At trial, Smith made no opening statement and presented no evidence,
instead choosing to assert his theory of defense -- that although he drove the
getaway car to some of the armed robberies, he remained in the car and did not
know that his two companions were robbing the stores -- solely through cross-
examination of three of the government’s eighteen witnesses.
The government presented the following evidence. In the evening of
November 26, 2005, around 5:00 p.m., Mark Baron was visiting a friend at the
Sunshine Motel in Winter Haven, Florida, when Hogan and another man, both
wearing bandanas and hats to conceal their faces, kicked in the door to the motel
room. One of the men hit Baron twice in the head with a handgun and demanded
the keys to Baron’s truck, which was parked just outside. Baron threw the keys to
the man and ran from the hotel. As he ran away, he heard a gunshot.
A few hours later, at approximately 8:00 p.m., Hogan and the other man,
both again wearing bandanas and gloves, robbed the Speedy Food Mart, which was
right down the road from the Sunshine Hotel in Winter Haven, at gunpoint. The
store clerk, Suvi Cyriac, testified that when the robbers approached the store, he
was outside talking to some regular customers. Cyriac saw two masked people,
both of whom were wearing gloves, coming toward him, one of whom had a gun.
One of the men hit the store clerk, Suvi Cyriac, in the face, fracturing his jaw, and
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shot at him when he had difficulty opening the register. Because one of the
robbers had tried to force the register open, it was jammed and Cyriac was unable
to open it. Instead, Cyriac gave the robbers some boxes with rolled coins and
banded currency, totaling about $1000 to $2000. Cyriac had three fractures to his
jaw, and his mouth had to be wired shut for two months after the robbery. The
government presented the store’s surveillance camera photos of the robbery.
On the following night, at approximately 9:55 p.m., Hogan and another man
entered the Island Foods convenience store in Haines City, Florida, and robbed the
store at gunpoint. The perpetrators were wearing hooded coats and gloves. The
government presented surveillance photos of the robbery. Before leaving with $50
from the cash register, one of the men fired a shot into the floor of the store.
On that same night, at 10:30 p.m., about fifteen miles from Haines City,
Hogan and the other man robbed a Circle K convenience store, again wearing
gloves and at gunpoint. This incident was recorded on a surveillance camera
video, which was presented to the jury. Crime scene technicians successfully lifted
a shoeprint from the counter over which the perpetrators had jumped.
About five days later, on December 2, 2005, at approximately 12:15 p.m.,
Hogan told his supervisor at Homes of Merit home manufacturing plant that he
needed to leave work early. After Hogan clocked out, the supervisor saw him walk
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out of the plant toward a white car waiting to pick him up. At approximately 2:00
p.m., Hogan and another person, both wearing bandanas to conceal their faces,
attempted to rob Bill’s Market convenience store, which is about one block away
from Homes of Merit. One of the perpetrators carried a gun and the other had a
club or a baton. The attempted robbery was caught on tape. Although Hogan and
the other perpetrator had covered their faces, Raj Bhasakran, one of the store
clerks, recognized Hogan, as he was a frequent customer. Hogan shot the other
clerk, Remesh Desai, through the chest with a .380-caliber round, and then fled the
store, without any money. Three weeks later, Desai died.
The government presented the testimony of four eyewitnesses who were in
the parking lot or in the store next to Bill’s Market. These witnesses consistently
testified that they saw two perpetrators, one of whom was carrying a gun and the
other a club or a board or a baton, exit Bill’s Market and run to a white Chevy
Cavalier. The witnesses all testified that they saw nobody else near the Cavalier.
The perpetrator with the gun got into the driver’s seat, and the other one got into
the passenger’s side of the vehicle. Less than two hours after the robbery, a crime
scene investigator recovered shoe impressions from the sandy area in front of the
store.
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That night, Polk County Sheriff’s Office deputies stopped and arrested
Hogan after one deputy observed him speeding down the highway in the white
Cavalier. During a search of the Cavalier, deputies found a .380-caliber handgun
lying on the back seat; nine live, .380-caliber bullets; a black, side-handle baton; a
red, hooded sweatshirt; a ski mask; a camouflage glove; a pair of jean shorts; and a
black bandana. Deputies also found two live rounds of ammunition and a black
“do rag” on Hogan’s person, and seized sneakers and a “Dirty South” sweatshirt,
which Hogan had been wearing when arrested. The soles of Hogan’s sneakers
matched one of the shoe impressions taken from Bill’s Market. A .380-caliber shell
casing recovered from the Sunshine Motel, a projectile recovered from the Island
Foods Store, and a spent casing and projectile recovered from Bill’s Market all had
been fired from the handgun taken from the Cavalier.
During a search of Hogan’s residence a few hours later, law enforcement
agents found more .380-caliber ammunition, another camouflage glove, a blue
latex glove, one white and one cream ski cap, a white “do rag,” a white baseball
cap, another “Dirty South” sweatshirt, and two pairs of sneakers. Agents also
found Mark Baron’s set of keys to his truck, his business card holder, and the
hands-free earphone for his cellular telephone, which had been in his truck. The
soles of one pair of sneakers found in Hogan’s residence matched one of the shoe
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impressions taken from the Circle K and one taken from Bill’s Market. The soles
of the other seized sneakers matched shoeprints taken from the Speedy Food Mart.
While being interviewed by law enforcement agents after his arrest, Hogan
received a call from Smith on his cellular telephone. One of the interviewing
agents, Detective Edwin Moran of the Polk County Sheriff’s Office, answered
Hogan’s cell phone and asked Smith to come to the Polk County Sheriff’s Office,
ostensibly to pick up the white Cavalier. In fact, Detective Moran testified, since
the Cavalier matched the description of the vehicle at Bill’s Market earlier that day
and was registered in Smith’s name, Moran wanted to question Smith about the
robberies.
After he arrived and was advised of his rights, Smith first acknowledged that
the car was his, and when he was informed that a gun had been found in the car, he
responded that the gun belonged to his brother. Smith also recounted his actions
earlier during the day, initially denying that he was at Bill’s Market, despite that
Detective Moran had told Smith that he (Moran) was investigating an incident at
Bill’s Market. When Moran told Smith that witnesses had seen his car parked on a
dirt road next to Bill’s Market, Smith recanted his original story and stated that he
had driven Hogan and another man to Bill’s Market. Smith claimed that he had
stood next to the vehicle while Hogan and the other man went into the store. Smith
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told agents that Hogan and the other man subsequently came running out of the
store and had jumped into the car. Smith said that he did not realize anything was
wrong until one of the store employees came running out of the store. Moran also
asked Smith about the other items found in the Cavalier, including a red “Dirty
South” sweatshirt. Smith claimed that he had loaned it to the unknown man who
had gone into Bill’s Market with Hogan. Smith further stated that the baton or
club found in the Cavalier was his father’s and that he had taken the baton from the
garage of his house and put it in his car sometime during the previous week.
Smith further stated that he had driven Hogan and another man he knew as
“Pooky” to the Speedy Food Mart robbery on November 26th, and the November
27th robberies at the Circle K and the Island Foods Store. Again, Smith claimed
that he had not participated in any of the robberies. He said during all of the armed
robberies, he had remained in the car and had not known that the robberies were
taking place.
At the end of the government’s case-in-chief, Smith moved for a judgment
of acquittal based on numerous grounds, including that the government had
presented no evidence linking him to the Sunshine Motel carjacking, or placing
him inside of any of the stores during the robberies. According to Smith’s
argument, the government’s evidence showed only that an unidentified person had
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committed the robberies with Hogan. As for Smith’s statement to law enforcement
that he had driven Hogan to the sites of the robberies, Smith contended that the
statement was insufficient to allow the jury to infer intent to commit the charged
crimes. The district court overruled Smith’s motion.
Smith rested without presenting any evidence. The jury found Smith guilty
of Counts One, Six, Seven, Nine, Ten, Eleven and Twelve, all of which related to
the robberies at the Island Foods Store and Circle K on November 27th and at
Bill’s Market on December 2nd. The jury found Smith not guilty of Counts Two,
Three, Four, Five, and Eight, all of which related to the incidents on November
26th -- the carjacking at the Sunshine Motel and the robbery at the Speedy Food
Mart. He then proceeded to sentencing.
The presentence investigation report (“PSI”) first noted the applicable
mandatory minimums, which included 10 years as to Count Seven and 25 years as
to Counts Ten and Twelve, with the sentences for each count to run consecutively.
The PSI then separated some of Smith’s convictions into groups for purposes of
calculating the Guidelines range. The first group included Counts One and Six,
both of which related to the Island Foods Store robbery. The second group
included Counts One and Nine, both of which related to the robbery of Circle K.
The third group related to the attempted robbery of Bill’s Market and included
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Counts One and Eleven. The PSI stated that, according to the medical examiner,
Desai died as a result of the gun shot wound he suffered during the robbery of
Bill’s Market. Pursuant to U.S.S.G. § 3D1.1(b)(1), Counts Seven, Ten, and
Twelve, which all involved the use of firearms, were not grouped.
The PSI computed a base offense level of 20, pursuant to U.S.S.G. § 2B3.1,
for groups one and two, and a base offense level of 43, pursuant to §§ 2A1.1(a),
2B3.1(c)(1), for group three, due in large part to Desai’s death. The PSI stated that
Smith had no prior convictions and recommended a criminal history category I.
Smith faced an advisory Guidelines range of life imprisonment, but the PSI noted
that after taking account of the applicable statutory maximums, the total Guidelines
range was 140 years’ imprisonment. Finally, the PSI noted that Smith was 20
years old, had been attending college, and had no history of alcohol or illicit
substance abuse. Neither party filed objections to the PSI. Moreover, at
sentencing, Smith did not object to the factual statements or the recommended
Guidelines range.
The district court adopted the PSI’s application of the Guidelines and then
heard mitigating and aggravating evidence. The district court invited victims in
attendance to speak and Hiren Desai, Desai’s son, requested justice for his father’s
death. Next, Smith’s mother apologized to the victims and requested mercy.
12
Smith’s step-father stated that Smith was a good kid and requested leniency.
Smith’s father stated that Smith was a wonderful and respectful son, who
unknowingly became involved in the crimes, and requested mercy. The district
court also accepted letters from Smith’s college professors, his high school
counselor, and a senior home where he had volunteered. Finally, Smith made a
statement on his own behalf. He explained that he was not a “violent monster” and
that he was just helping Hogan by giving him a ride. Smith stated that he
sympathized with the victims.
Defense counsel argued that a 140-year term was unwarranted and would be
especially devastating and leave no hope, in light of Smith’s age and the fact that
he had no prior criminal record. Recognizing that 18 U.S.C. § 924 required a
minimum sentence of 60 consecutive years for Counts Seven, Ten, and Twelve,
Smith requested that the district court exercise its discretion to impose a below-
Guidelines sentence, as to the remaining counts (One, Six, Nine, and Eleven), for
which he faced an advisory range of 80 years. Smith reiterated his positive
contributions to society and family support. The government objected to a below-
Guidelines sentence.
The district court recognized that nothing in Smith’s background would have
predicted his involvement in charged crimes, and the court characterized Smith as
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mild and unaggressive. The court also opined that Hogan was more aggressive and
was the leader. After stating that it had considered the § 3553 factors and had
accorded advisory consideration to the Guidelines range, the district court
sentenced Smith to a total term of 1,680 months’ incarceration, which represented
the following consecutive sentences: the statutory maximum of 240 months for
each of Counts One, Six, Nine, and Eleven; the statutory minimum of 120 months’
for Count Seven; and the statutory minimum of 300 months for each of Counts Ten
and Twelve. Neither party objected to the sentence or the manner in which it was
announced. This appeal followed.
III.
First, Smith challenges the sufficiency of the evidence to support his
convictions. He argues that the only evidence connecting him to the crimes was
his statement to law enforcement that he had driven Hogan and an unknown person
to and from the scenes of the three armed robberies for which the jury found him
guilty. Smith contends that his “mere presence” at the crime scenes cannot support
the conspiracy convictions. Although Smith cites United States v. Gray, 260 F.3d
1267 (11th Cir. 2001), and acknowledges that “the law . . . is clear that only a
minimal effect upon commerce is necessary to form the interstate commerce nexus
required under the Hobbs Act” to invoke federal jurisdiction through the
14
Commerce Clause, he also argues, for the first time on appeal, that the robberies
lacked the requisite interstate commerce nexus without citation to supporting
authority.
Section 2 of Title 18 of the United States Code provides that whoever aids or
abets the commission of an offense against the United States, including violations
of 18 U.S.C. §§ 1951, 924, is punishable as a principal to the offense. See 18
U.S.C. § 2. In order to support a conviction for conspiracy under § 2, the
government must prove knowing participation and an agreement. United States v.
Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995). “Mere presence, guilty knowledge,
even sympathetic observation” are insufficient to support a conviction for
conspiracy. Id. Although mere presence is inadequate to establish guilt, “we have
held that ‘it is material, highly probative, and not to be discounted.’” United States
v. Gamboa, 166 F.3d 1327, 1332 (11th Cir. 1999) (citation omitted). Moreover, “a
jury may find knowledgeable voluntary participation from presence when the
presence is such that it would be unreasonable for anyone other than a
knowledgeable participant to be present.” United States v. Cruz-Valdez, 773 F.2d
1541, 1546 (11th Cir. 1985) (en banc).
Section 1951 of Title 18 of the United States Code, part of the Hobbs Act,
requires the government to prove beyond a reasonable doubt that a defendant
15
obstructed or affected interstate commerce by robbery, conspired to do so, or
threatened or committed physical violence to any person or property in furtherance
of the robbery or conspiracy. 18 U.S.C. § 1951. We have specifically held that
robbery “is undeniably an economic crime,” whose relationship to “commerce is
clear, direct, and unattentuated.” United States v. Gray, 260 F.3d at 1267, 1274
(11th Cir. 2001). The type of evidence required for the Government to satisfy its
burden of proof concerning the interstate commerce nexus under the Hobbs Act
differs depending on whether the defendant is charged with inchoate offenses of
conspiracy and attempt, on one hand, or a substantive offense. United States v. Le,
256 F.3d 1229, 1232 (11th Cir. 2001). Where a defendant is charged with attempt
or conspiracy to violate the Hobbs Act, “the interstate nexus may be demonstrated
by evidence of potential impact on interstate commerce or by evidence of actual,
de minimis impact.” Id. (citations omitted). In the case of a substantive Hobbs
Act offense, the “impact on commerce does not need to be substantial; all that is
required is minimal impact.” Id.Section 924(c) requires the government to prove beyond a reasonable doubt
that a defendant carried, brandished, or discharged a firearm during a crime of
violence. 18 U.S.C. § 924(c)(1)(A). A defendant may be criminally liable under
§ 924, if he could reasonably foresee that his co-conspirator would use or carry a
16
firearm in connection with a crime of violence. United States v. Bell, 137 F.3d
1274, 1275 (11th Cir. 1998).
We first consider the sufficiency of the evidence to support Smith’s
convictions for the armed robberies at the Circle K and the Islands Food Store on
November 27th and at Bill’s Market on December 2nd. In his statement to
Detective Moran, Smith admitted to being present, as the driver, at these three
armed robberies. Notably, the car observed outside of Bill’s Market, in which the
two perpetrators fled the scene, was registered to Smith.
The two robberies on November 27th occurred a mere 35 minutes apart.
During this short time span, according to Smith’s story, he drove his brother and
someone he knew only as “Pooky” to two convenience stores, but remained
outside and did not know that anything unusual was taking place inside of the
stores, despite that the perpetrators of both of these crimes wore masks, or
otherwise concealed their faces, and gloves. The jury readily could have inferred
that it would not be reasonable for Smith, even if present at these crimes solely as
the getaway driver, to have had no idea that a crime had been committed, in light
of the disguises the perpetrators must have been wearing when they exited the
Cavalier and entered the stores.
17
As for the Bill’s Market incident, which resulted in Desai’s death, at first,
Smith claimed he was not at Bill’s Market earlier in the day. Only after Detective
Moran told him that his car had been seen outside of the Market did Smith recant
his initial claim and then suggest that, in fact, he was present but had remained
outside, standing by the car. Notably, the four eyewitnesses who saw the two
perpetrators fleeing Bill’s Market, one with a gun and the other with a club or
baton, consistently said that they saw nobody else in the area around the car.
Moreover, the witnesses all said that they saw the perpetrator with the gun sit in the
driver’s seat, thus undermining Smith’s suggestion that he was the driver and had
remained outside of the store while Hogan and an unknown person committed the
crime. Smith also admitted to Moran that one of the sweatshirts found in the
Cavalier, and worn by one of the perpetrators of the Bill’s Market robbery,
belonged to him. And, again, during this robbery the perpetrators wore masks, or
otherwise concealed their faces, and gloves. Finally, Smith said that the baton
carried during the Bill’s Market robbery, in fact, belonged to his father. Smith said
that he had put the baton in his car sometime during the prior week. Given all of
these circumstances, a reasonable jury could have found Smith guilty, beyond a
reasonable doubt, either as one of the perpetrators who went into the store, or as an
aider and abettor.
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On this record, a reasonable jury could have found, beyond a reasonable
doubt, that Smith’s participation was instrumental in the perpetration of the armed
robberies, and thus the jury also could reasonably infer his participation in the
conspiracy and conclude that he committed the conspiracy offenses. The jury
readily could have chosen to reject Smith’s theory of defense, which, again, was
that he remained in the car during the robberies and did not know what was
happening inside the stores. Indeed, the jury’s split verdict indicates that it
followed the district court’s instructions and carefully considered each count
individually and its related evidence. In fact, the record fully supports the jury’s
verdict on two theories. First, Smith committed the robberies with Hogan, and his
suggestion that “Pooky” was present on November 27th and another unknown
person accompanied Hogan into Bill’s Market on December 2nd was fabricated.
Alternatively, even if “Pooky” and the unknown other perpetrator existed, Smith
was a knowing participant, by his own admission, as the getaway driver.
As for the charges for carrying a firearm, which was brandished or used
during a crime of violence, during his interview with Detective Moran, Smith
admitted to driving Hogan to and from each of the armed robberies for which he
was convicted and that he was aware that his brother had a gun. The jury could
reasonably conclude that Smith, at the very least, saw the firearm when driving
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Hogan to and from the multiple crime scenes and that it was reasonably
foreseeable the firearm would be used during the robberies. Moreover, the
government presented abundant evidence that each store robbed was engaged in
interstate commerce and, thus, that each act had at least a de minimis, actual impact
sufficient to establish the required interstate commerce nexus. In short, Smith has
not shown reversible error based on the sufficiency of the evidence.
IV.
We likewise are unpersuaded by Smith’s sentencing claims. First, we find
no error in the calculation of the advisory Guidelines range. Where a defendant
does not object to statements in the PSI, the district court may rely on those
undisputed statements, even in the absence of supporting evidence. See United
States v. Hedges, 175 F.3d 1312, 1315 (11th Cir. 1999). Pursuant to U.S.S.G. §§
2A1.1(a), 2B3.1(c), an offense level of 43 is applied if a victim is killed under
circumstances that would constitute murder under 18 U.S.C. § 1111. Section 1111,
in turn, defines murder as “the unlawful killing of a human being with malice
aforethought. Every murder . . . committed in the perpetration of, or attempt to
perpetrate, any . . . robbery . . . is murder in the first degree.” 18 U.S.C. § 1111.
Given the PSI’s undisputed factual finding that Desai died as a result of the
gunshot wound he received in the course of the Bill’s Market robbery, we discern
20
no error in the assignment of an offense level of 43 or in the calculation of the
advisory Guidelines range based on that offense level.
As for the reasonableness of Smith’s ultimate sentence, we begin our
analysis by observing that the sentence imposed was a low-end Guidelines
sentence. Although we do not presume reasonable a sentence within the properly
calculated Guidelines range, we ordinarily expect such a sentence to be reasonable.
See United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir. 2006); United States v.
Talley, 431 F.3d 784, 787-88 (11th Cir. 2005).
When reviewing reasonableness, we consider the factors outlined in
18 U.S.C. § 3553(a) and the district court’s reasons for imposing the particular
sentence. United States v. Williams, 456 F.3d 1353, 1360-61 (11th Cir. 2006).
The § 3553(a) factors include: (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the need for the sentence (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 or medical
care; (3) the kinds of sentences available; (4) the Sentencing Guidelines range;
(5) pertinent policy statements of the Sentencing Commission; (6) the need to
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avoid unwarranted sentencing disparities; and (7) the need to provide restitution to
victims. See 18 U.S.C. § 3553(a)(1)-(7).
Before imposing sentence, the district court considered the PSI and the
advisory Guidelines range, as well as mitigating statements from Smith’s mother
and step-father, Smith’s own statement of remorse, and numerous letters in support
of mitigation. The court stated that despite the mitigating evidence and Smith’s
lack of a criminal history, the court saw no reason to depart from the recommended
range. On this record, Smith has not met his burden to establish his sentence was
unreasonable.
AFFIRMED.
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