United States v. Smith ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4813
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHIRLEY E. SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Cameron McGowan Currie, District Judge.
(CR-02-313)
Submitted: March 11, 2005 Decided: March 3, 2006
Before LUTTIG, WILLIAMS, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jill E. M. HaLevi, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Kevin F. McDonald, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Shirley E. Smith was convicted after a jury trial of four
counts of making false statements, in violation of 18 U.S.C.
§ 1001(a)(2) (2000); one count of false declarations before a grand
jury or court, in violation of 18 U.S.C. § 1623 (2000); and two
counts of making or presenting false claims upon the United States,
in violation of 18 U.S.C. § 287 (2000). The district court
sentenced Smith to twenty-seven months of imprisonment, two years
of supervised release, and a $700 special assessment. In her first
appeal, we affirmed Smith’s convictions, but vacated her sentence
and remanded for resentencing. United States v. Smith, No.
03-4467, 2004 WL 1729821 (4th Cir. Aug. 3, 2004) (unpublished).
Smith now appeals the sentence imposed by the district court on
remand.
On remand, Smith objected to the presentencing report.
Relying upon the Supreme Court’s decision in Blakely v. Washington,
124 S. Ct. 2531 (2004), Smith asserted that all enhancements to her
base offense level should be removed because the facts supporting
those enhancements were not stipulated to or found by the jury.
At the re-sentencing hearing the district court overruled
Smith’s Blakely objection and applied the guidelines in accordance
with this court’s direction in United States v. Hammoud, 378 F.3d
426 (4th Cir. 2004) (order), opinion issued by 381 F.3d 316, 353-54
(4th Cir. 2004) (en banc), petition for cert. granted, judgment
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vacated, 125 S. Ct. 1051 (2005). The district court imposed a
sentence of twenty-one months of imprisonment, the minimum of the
guideline range, two years of supervised release, and a $700
special assessment. The district court declined, however, to
specify an alternative sentence as suggested in Hammoud.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court applied Blakely’s rationale to the federal sentencing
guidelines. After severing two provisions of the Sentencing Reform
Act (18 U.S.C. § 3553(b)(1), requiring sentencing courts to impose
a sentence within the guideline range, and 18 U.S.C. § 3742(e),
setting forth standards of review on appeal), the Court held that
the guidelines remain as advisory only. Sentencing courts are now
required to consider the applicable guideline range, but may
“tailor the sentence in light of other statutory concerns . . . .”
Booker, 125 S. Ct. at 757.
In this case, as in Booker, Smith’s sentence was
determined by application of the Guidelines as a mandatory
determinant in sentencing. Although the district court stated that
it believed a twenty-one month sentence was appropriate in this
case, the court specifically declined to state an alternate
sentence if the Guidelines were merely advisory. It is impossible
to determine on the present record whether the district court would
have chosen to sentence Smith to twenty-one months in the exercise
of its discretion.
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We therefore again vacate the sentence imposed by the
district court and remand for reconsideration of the sentence in
accordance with Booker. We deny the Government’s motion to remand
as moot. 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.
VACATED AND REMANDED
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