United States v. Smith , 235 F. App'x 89 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4305
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RYAN LEE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cr-00834-DCN)
Submitted: July 18, 2007 Decided: July 30, 2007
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ryan Lee Smith pled guilty without the benefit of a plea
agreement to one count of identity theft, in violation of 18 U.S.C.
§ 1028(a)(7), (b)(1)(D) (2000). Although he did not object to the
calculations in his presentence report (“PSR”), he argued three
prior state convictions were part of the same course of conduct as
his federal offense, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 1B1.3 (2005). Therefore, Smith argued his federal
sentence should run concurrently with his state sentence pursuant
to USSG § 5G1.3(b). The district court dismissed this argument,
finding the three state convictions were sentenced concurrently
with unrelated state drug convictions, which Smith’s counsel
conceded did not constitute relevant conduct under USSG § 1B1.3.
The court sentenced Smith to twenty-four months’ imprisonment, at
the bottom of the sentencing guidelines range and a sufficient term
to qualify for the Bureau of Prisons’ 500-hour drug treatment
program. Smith timely appealed, and we affirm the district court’s
judgment.1
Smith argues the district court erroneously believed it
had no discretion to fashion a reasonable punishment pursuant to
USSG § 5G1.3(c).2 The Government contends this argument was not
1
Smith does not challenge his conviction on appeal.
2
Smith does not contend his sentence was unreasonable under
United States v. Booker, 543 U.S. 220 (2005).
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raised below. See United States v. Rouse, 362 F.3d 256 (4th Cir.
2004) (holding USSG § 5G1.3(c) argument waived when defense counsel
failed to cite that section or argue district court was required to
impose concurrent sentence). Smith contends he sufficiently
referenced USSG § 5G1.3 generally at the sentencing hearing.
Unlike in United States v. McCormick, 58 F.3d 874, 877 (2d Cir.
1995), however, Smith’s counsel did not merely mistakenly reference
the provision of USSG § 5G1.3 upon which he sought to rely at the
sentencing hearing. Smith does not make “essentially the same
argument to the district court that he now raises on appeal,” see
id., and therefore we review his argument for plain error.
To meet the plain error standard: (1) there must be an
error; (2) the error must be plain; and (3) the error must affect
substantial rights. United States v. Olano, 507 U.S. 725, 732-34
(1993). If the three elements of the plain error standard are met,
we may exercise our discretion to notice the error only if the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings. Id. at 736. After thoroughly
reviewing the applicable materials, including the sentencing
transcript, we conclude Smith fails to meet this standard.
Accordingly, we affirm the district court’s judgment. 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
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