United States v. Scott Smallwood , 525 F. App'x 239 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4600
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SCOTT ALEXANDER SMALLWOOD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10-
cr-00334-RWT-1)
Submitted: May 15, 2013 Decided: May 24, 2013
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicholas J. Vitek, VITEK LAW LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Antonio
J. Reynolds, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Scott Alexander Smallwood pled guilty to two counts of
producing child pornography, in violation of 18 U.S.C.A.
§ 2251(a) (West Supp. 2013). The district court sentenced him
to the statutory maximum of 360 months on one count and to a
consecutive 300 months on the other count, for a total 660
months. The sentence represented a variance of 333 months above
the top of the advisory Guidelines range established at
sentencing. Smallwood challenges the procedural and substantive
reasonableness of his sentence. We affirm.
We review a sentence, “whether inside, just outside,
or significantly outside the Guidelines range[,] under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. at 51. We must assess, among
other things, whether the district court considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Id.; see United States v. King, 673 F.3d
274, 283 (4th Cir.) (“Every sentence requires an adequate
explanation.”), cert. denied, 133 S. Ct. 216 (2012). If the
sentence is procedurally sound, then we consider the substantive
reasonableness of the sentence, “tak[ing] into account the
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totality of the circumstances, including the extent of any
variance from the Guidelines range.” Gall, 552 U.S. at 51.
Smallwood first argues that the district court failed
to address his nonfrivolous arguments in favor of a within-
Guidelines sentence. However, our review of the joint appendix
filed by the parties leads us to conclude that the district
court considered and rejected Smallwood’s arguments. Thus, the
district court committed no procedural error.
Having concluded there is no procedural error, we next
review the substantive reasonableness of the sentence,
“examin[ing] the totality of the circumstances to see whether
the sentencing court abused its discretion in concluding that
the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010); see Gall, 552 U.S. at 51. Where, as here, “the
sentence is outside the Guidelines range, the court may consider
the extent of the deviation, but must give due deference to the
district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Gall, 552 U.S. at
51. Even if we would have imposed a different sentence, that
fact alone will not justify vacatur of the district court’s
sentence. Id.Smallwood asserts that the district court failed to
explain sufficiently why a sentence 333 months above the top of
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the Guidelines range—and 398 months longer than the 262-month
sentence he requested—was appropriate, but the record belies his
claim. The court discussed the § 3553(a) factors, first listing
each factor and then explaining how that factor related to
Smallwood’s case. Smallwood also contends that the district
court improperly relied on the unsupported assumption that all
sex offenders have a high risk of recidivism and that the court
failed to discuss the likelihood that he, in particular, would
recidivate. Even assuming Smallwood is correct, “[w]hen, as
here, a district court offers two or more independent rationales
for its deviation, an appellate court cannot hold the sentence
unreasonable if [it] finds fault with just one of these
rationales.” United States v. Evans, 526 F.3d 155, 165 (4th
Cir. 2008). Moreover, contrary to Smallwood’s assertion on
appeal, we conclude that, given the wealth of evidence before
the district court, the court did indeed consider the likelihood
that Smallwood would recidivate upon his release.
Accordingly, taking into account “the totality of the
circumstances,” Gall, 522 U.S. at 51, we hold that the district
court did not abuse its discretion in imposing an upward
variance near the statutory maximum possible sentence and
therefore affirm the district court’s judgment. We dispense
with oral argument because the fact and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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