United States v. Smith , 357 F. App'x 518 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4928
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT JARED SMITH, a/k/a J Dog,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 08-8197)
Submitted: November 30, 2009 Decided: December 18, 2009
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Barron Michael Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston,
West Virginia, for Appellant. Monica Kaminski Schwartz,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2000, a jury convicted Robert Jared Smith of
conspiracy to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C. § 846 (2006), and aiding and abetting
possession with intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2 (2006). The
district court sentenced Smith to life in prison on the
conspiracy count and a concurrent twenty-year prison term on the
possession with intent to distribute count. On appeal, we
affirmed Smith’s convictions, but vacated his sentence and
remanded for resentencing on the ground that the district court
abused its discretion by applying a leadership role enhancement
pursuant to U.S. Sentencing Guidelines Manual § 3B1.1 (1999).
United States v. Sayles, 296 F.3d 219, 227 (4th Cir. 2002).
Following a hearing, the district court sustained
Smith’s objections to the leadership role enhancement and
resentenced him without the four-level increase under USSG
§ 3B1.1. Thus, his offense level was reduced from 42 to 38.
Based on an offense level of 38 and criminal history category
IV, Smith’s guidelines range on the conspiracy count was 324 to
405 months in prison. The court sentenced him to 405 months on
the conspiracy count and to a concurrent 240 months on the
possession with intent to distribute count. Smith appealed, and
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we affirmed. United States v. Smith, 98 F. App’x 962 (4th Cir.
2004) (No. 02-4928).
Smith subsequently filed a 28 U.S.C.A. § 2255 (West
Supp. 2009) motion, which the district court denied. One of the
issues that arose during Smith’s § 2255 proceedings concerned
appellate counsel’s failure to file a petition for writ of
certiorari as requested in United States v. Smith, 98 F. App’x
962 (4th Cir. 2004). We construed Smith’s § 2255 motion as a
motion to recall the mandate in Smith, 98 F. App’x 962, recalled
the mandate, and reentered the judgment to permit Smith to file
a timely petition for certiorari to the United States Supreme
Court. United States v. Smith, 321 F. App’x 229 (4th Cir. 2008)
(No. 07-6358). The Supreme Court subsequently granted Smith’s
petition for certiorari, vacated this court’s judgment, and
remanded his case for further proceedings in light of United
States v. Booker, 543 U.S. 220 (2005). Smith v. United States,
129 S. Ct. 2763 (2009).
In light of the vast changes in the legal landscape
that have occurred in the seven years since the district court
resentenced Smith, we vacate Smith’s sentence and remand for
resentencing in light of Booker and its progeny. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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