United States v. Smith , 240 F. App'x 509 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-12-2007
USA v. Smith
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2249
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Smith" (2007). 2007 Decisions. Paper 780.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/780
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2249
UNITED STATES OF AMERICA
v.
SHAKIR M. SMITH,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 00-cr-00010J)
District Judge: Honorable Kim R. Gibson
Submitted Under Third Circuit LAR 34.1(a)
July 12, 2007
Before: RENDELL, AMBRO and NYGAARD, Circuit Judges.
(Filed: July 12, 2007)
OPINION
RENDELL, Circuit Judge.
Shakir M. Smith appeals from the sentence of twenty-four months imposed in
March 2006 for violations of his supervised release. Smith argues that the District
1
Court’s sentence is both substantively and procedurally unreasonable. Smith requests that
we vacate his sentence and remand for re-sentencing on the grounds that the District
Court sentenced him based on an improper desire to punish him for his 2004 criminal
conduct, failed to properly set forth its reasons for the sentence, and violated the mandate
in § 3553(a) that the sentence imposed must be sufficient, but not greater than necessary,
to achieve the valid purposes of sentencing. We have jurisdiction over Smith’s appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and we will affirm.
I.
In September 2000, Smith was sentenced in federal court to 51 months’
imprisonment and three years supervised release after pleading guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). While serving the
final portion of his federal sentence, Smith was released to a halfway house. In April
2004, Smith did not timely return to the halfway house after visiting his family and a
warrant was issued for his arrest. On April 6, 2004, Smith engaged a federal marshal in a
high speed car chase that ended in his arrest. He was subsequently charged in state court
with fleeing, eluding and reckless endangerment and released back to the halfway house
while these charges were pending. Smith was released from federal custody on June 4,
2004 and began serving his term of supervised release.
On August 3, 2004, while Smith was on supervised release, he was arrested on the
Johnstown Housing Authority property, an area from which Smith had been previously
2
banned. Officer Haymaker followed Smith into one of the apartments and observed him
make a throwing motion towards the corner of the room. Although Officer Haymaker did
not search the area at that time, in a subsequent search officers recovered a clear plastic
baggie of suspected cocaine base and three stamp bags of suspected heroin, as well as a
baggie of suspected marijuana. Smith’s subsequent urine test was positive for marijuana.
On October 18, 2004, United States Probation Officer Warren Johnson filed a
petition on the District Court alleging that Smith had violated Standard Conditions 1, 3, 8
and 12 of his supervised release. The respective conditions are that: (1) the defendant
shall not commit another federal, state or local crime, (3) the defendant shall report to the
probation officer as directed and shall submit a truthful and complete written report
within the first five days of each month, (8) the defendant shall not purchase, possess,
use, distribute or administer any narcotic or other controlled substance or any
paraphernalia related to such substances, except as prescribed by a physician, (12) the
defendant shall notify the probation officer within 72 hours of being arrested or
questioned by a law enforcement officer.
Subsequently, Smith was sentenced in state court to one-to-two years incarceration
for the offense of fleeing, eluding and reckless endangerment for attempts to evade law
enforcement on April 6, 2004. After his release from state custody on January 30, 2006, a
preliminary revocation hearing was held on February 17, 2006 in the District Court.
At the preliminary revocation hearing, Smith stipulated that he violated each of the
3
above conditions of his supervised release. Specifically, Smith stipulated that he had
committed defiant trespass and tampering or destruction of evidence, failed to report to
his probation officer, failed to notify his probation officer within 72 hours of his arrest,
and tested positive for THC (marijuana) in his urine. Smith, however, did not concede
that he possessed a controlled substance when he trespassed onto the Johnstown Housing
Authority property. The magistrate judge found that the government had established
probable cause to find that Smith had violated the terms of his supervised release and held
Smith in custody until the supervised release revocation hearing.
At the supervised release revocation hearing on March 28, 2006, the District Court
revoked Smith’s supervised release. The Court found that Smith’s most serious violation
was a Grade B violation, and that the advisory sentencing range under the Sentencing
Commission’s policy statements concerning revocation of supervised release was 21-24
months’ imprisonment. The Court sentenced Smith to the maximum penalty allowed by
statute: 24 months’ imprisonment.
II.
We review Smith’s overall sentence for reasonableness. United States v. Bungar,
478 F.3d 540, 543 (3d Cir. 2007) (citing United States v. Booker, 543 U.S. 220, 262
(2005)).
The sentencing guidelines concerning imposition of a term of imprisonment upon
revocation of supervised release are advisory and thus not binding on the District Court.
4
United States v. Schwegel, 126 F.3d 551, 553 (3d Cir. 1997). However, to uphold a
sentence, we must be satisfied that the court gave meaningful consideration to the factors
listed in 18 U.S.C. § 3553(a) relevant to the revocation of supervised release and that
those factors were reasonably applied to the circumstances of the case. See United States
v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). The district court does not need to discuss a
defendant’s clearly nonmeritorious arguments, or otherwise discuss and make findings as
to each of the § 3553(a) factors if the record makes clear that the court took the factors
into account in sentencing. Bungar, 478 F.3d at 543 (citing Cooper, 437 F.3d at 329);
Rita v. United States, No. 06-5754, 2007 WL 1772146, at *12 (June 21, 2007). Pursuant
to § 3583(e), not all of the § 3553(a) factors are relevant to revocation of supervised
release.
§ 3583(e)(3) states:
The court may, after considering the factors set forth in § 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) - revoke a
term of supervised release, and require the defendant to serve in prison all
or part of the term of supervised release authorized by statute for the
offense that resulted in such term of supervised release without credit for
time previously served on postrelease supervision, if the court finds... by the
preponderance of the evidence that the defendant violated a condition of
supervised release, except that a defendant whose term is revoked under this
paragraph may not be required to serve on any such revocation more than...
2 years in prison if [the offense that resulted in the term of supervised
release] is a class C or D felony...
The relevant § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history and
5
characteristics of the defendant;
(2) the need for the sentence imposed –
...
(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;
...
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines
(B) in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing
Commission pursuant to 28 U.S.C. § 994(a)(3), taking into account any
amendments made to such guidelines or policy statements by act of
Congress (regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into amendments issued
under 28 U.S.C. § 994);
(5) any pertinent policy statement —
...
(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.
Smith first argues that the District Court’s sentence was unreasonable because the
Court relied “primarily, if not solely, on [his] criminal history and the criminal conduct
forming the basis for the supervised release violation in imposing the maximum term of
imprisonment available.” Appellant Br. 18. However, the history and characteristics of
the defendant are factors that a court should consider when imposing sentence following
the revocation of supervised release. See 18 U.S.C. § 3583(e)(3) (stating that a court
should consider the factors in 18 U.S.C. § 3553(a)(1) in deciding whether to revoke a
6
term of supervised release and require a defendant to serve a term of imprisonment);
United States v. Blackston, 940 F.2d 877, 893 (3d Cir. 1991). In imposing its sentence,
the District Court considered many factors, including but not limited to Smith’s extensive
criminal record, disrespect for the law, and inability to adhere to the conditions of his
supervised release. These are permissible sentencing considerations under § 3583(e)(3).
Smith also argues that the District Court failed to properly set forth the reasons for
its sentence and for rejecting his request for a sentence of one year and one day. We
disagree. The record should demonstrate that the court considered the relevant § 3553(a)
factors and any sentencing grounds properly raised by the parties which have recognized
legal merit and factual support in the record. Cooper, 437 F.3d at 329; Rita, 2007 WL
1772146, at *12. However, the court does not have to discuss and make findings as to
each of the relevant § 3553(a) factors if the record makes clear the court took the factors
into account in sentencing. Id. (citing United States v. Williams, 425 F.3d 478, 480 (7th
Cir. 2005)).
The District Court’s statements reflect its reasons for imposing the 24 month
sentence and make clear that it considered the arguments of counsel for imposing a lower
sentence. The Court found that Smith’s conduct “has not demonstrated an acceptance of
responsibility nor a change of his ways that lead him into these problems.” App. 123.
The Court also took into account the instability of the defendant and the strong
possibility, in light of past conduct, that he might commit similar crimes in the future.
7
Additionally, the Court also considered the sentencing range recommended in the
Sentencing Commission’s policy statement. Given that a court need not make findings as
to each of the relevant § 3553(a) factors, the District Court properly disclosed its reasons
for the imposed sentence. Smith also objects to the District Court’s failure to discuss
Smith’s request for a sentence of a year and a day. However, the record reflects that the
Court considered Smith’s request, but found that Smith’s lack of respect for the laws and
irreverence for already imposed sentences, as well as his continued danger to society,
merited a sentence of 24 months’ imprisonment.
Lastly, Smith argues that the sentence imposed was “greater than necessary” to
achieve the valid purposes of sentencing. We review the District Court’s sentence for
reasonableness. We cannot conclude that the determination that a 24-month sentence
should be imposed was unreasonable.
III.
Accordingly, for the reasons set forth, we conclude that Smith’s sentence is
reasonable and we will affirm the judgment of the District Court.
8