United States v. Smith , 269 F. App'x 295 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4593
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES HENRY SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00133-JAB-1)
Submitted: February 4, 2008 Decided: March 14, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth R. Cohen, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Henry Smith appeals his 168-month sentence for
armed bank robbery, in violation of 18 U.S.C. § 2113(d) (2000), and
carrying and using firearms during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000).
Smith contends that the district court erred, pursuant to 18 U.S.C.
§ 3553(a) (2000), by failing to discuss U.S. Sentencing Guidelines
Manual (“USSG”) § 5G1.3(c) (2006) when it imposed Smith’s sentence
to run consecutively to, rather than concurrently with, his
undischarged state prison sentence for nearly contemporaneous
conduct.
Ordinarily, we review legal questions involving the
application of a sentencing guideline de novo. United States v.
Mosley, 200 F.3d 218, 221 (4th Cir. 1999). Where a defendant
argues on appeal that a district court erred in its consideration
of § 5G1.3, but the defendant does not cite § 5G1.3 or argue that
he was entitled to a concurrent sentence in the district court, we
review only for plain error. United States v. Rouse, 362 F.3d 256,
260 (4th Cir. 2004). Smith argued before the district court that
he should be given a concurrent sentence, but did not specifically
cite § 5G1.3. Smith has not demonstrated error under either
standard of review.
We “presume in non-departures, unless some contrary
indication exists, that a district court properly considered the
- 2 -
pertinent statutory factors.” United States v. Johnson, 138 F.3d
115, 119 (4th Cir. 1998). “A court need not engage in ritualistic
incantation in order to establish its consideration of a legal
issue,” where “the district court rules on issues that have been
fully presented for determination. Consideration is implicit in
the court’s ultimate ruling.” United States v. Davis, 53 F.3d 638,
642 (4th Cir. 1995). Smith argued in the district court that he
should be given a sentence that would run concurrently with his
state prison sentence, and the district court rejected this
argument, stating that it had considered the relevant statutory
factors. Although the district court did not specifically discuss
§ 5G1.3(c) at the sentencing hearing, this provision was cited in
the presentence investigation report (“PSR”), and the court stated
that it had considered the evidence in the PSR as well as the
arguments presented at the hearing. Accordingly, we can fairly
infer that the district court considered § 5G1.3(c), and Smith has
not shown any error.
Smith also argues that his sentence is unreasonable under
§ 3553(a) because the district court did not discuss § 5G1.3(c) and
because it imposed a sentence that runs consecutively to his state
prison sentence. We review the sentence to determine whether it is
reasonable, applying an abuse of discretion standard. Gall v.
United States, 552 U.S. ___, 2007 WL 4292116, *7 (U.S. Dec. 10,
2007) (No. 06-7949). We presume that a sentence imposed within the
- 3 -
properly calculated guidelines range is reasonable. United
States v. Green, 436 F.3d 449, 457 (4th Cir. 2006); See Rita v.
United States, 127 S. Ct. 2456, 2462-68 (2007). A district court
must explain the sentence it imposes sufficiently for this court to
effectively review its reasonableness, but need not mechanically
discuss all the factors listed in § 3553(a). United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). The court’s
explanation should indicate that it considered the § 3553(a)
factors and the arguments raised by the parties. Id. We do not
evaluate the adequacy of the district court’s explanation “in a
vacuum,” but also consider “[t]he context surrounding a district
court’s explanation.” Id. at 381.
We presume that Smith’s sentence within the properly
calculated guidelines range is reasonable, and Smith has not
overcome that presumption. Although the district court did not
discuss the § 3553(a) factors, it stated that it considered the
statutory factors, the arguments raised by the parties, and the
advisory guidelines range as calculated in the PSR, in determining
Smith’s sentence. The district court considered Smith’s argument
that he was serving a significant sentence in state court for
conduct related to the present offenses and his contention that he
should be given a sentence that would run concurrently with his
state prison term. The court also considered the evidence in the
PSR, which noted that Smith has many prior convictions, including
- 4 -
several for violent crimes in recent years. Accordingly, the
district court reasonably determined within its discretion that the
nature of Smith’s offenses justified imposing his federal sentence
to run consecutively to the undischarged state prison term.
We affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
- 5 -