United States v. Smith , 429 F. App'x 324 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4044
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00176-FL-1)
Submitted: April 29, 2011 Decided: May 19, 2011
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Smith pled guilty to possession with
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006), and was sentenced to
121 months in prison. He now appeals, challenging his sentence.
We affirm.
I
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Seay, 553 F.3d 732, 742
(4th Cir.), cert. denied, 130 S. Ct. 127 (2009). We first
examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence — including an explanation for any deviation
from the Guidelines range.” Gall, 552 U.S. at 51.
We next “consider the substantive reasonableness of
the sentence imposed.” Id. At this stage, we “take into
account the totality of the circumstances.” Id. “Regardless of
whether the district court imposes an above, below, or within-
Guidelines sentence, it must place on the record an
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individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted). We afford a
presumption of reasonableness to a within-Guidelines sentence.
United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see also
Rita v. United States, 551 U.S. 338, 347 (2007).
II
According to Smith’s presentence investigation report,
he was responsible for 224.15 grams of crack cocaine, for a base
offense level of 32. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(4) (2009). This amount consisted of 25.7 grams of
crack found in Smith’s vehicle when he was arrested and an
additional seven ounces (198.45 grams) that a confidential
informant reported he had purchased from Smith.
Smith objected to inclusion of the 198.45 grams as
relevant conduct. At sentencing, the district court heard
testimony from Officer Phillip Lewis that the confidential
informant told Lewis that he had purchased seven or eight ounces
of crack from Smith between 2007 and 2009. Lewis was aware that
federal authorities had recordings of a suspected drug dealer
stating that Smith also was selling drugs. Lewis testified that
the informant had provided law enforcement officers with
accurate information about both Smith and a third drug dealer.
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Under Lewis’ direction, the informant set up a controlled buy of
crack cocaine from Smith on January 30, 2009.
Following Lewis’ testimony, the district court held
that the Government had established by a preponderance of the
evidence that the disputed 198.45 grams of crack cocaine was
properly included as relevant conduct. Smith contends that this
was error.
We review the district court’s factual finding for
clear error. United States v. Jeffers, 570 F.3d 557, 570 (4th
Cir.), cert. denied, 130 S. Ct. 645 (2009). Clear error occurs
“when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” In re Mosko, 515
F.3d 319, 324 (4th Cir. 2008) (internal quotation marks
omitted).
We hold that the district court did not clearly err in
finding that Smith was responsible for seven ounces, or 198.45
grams, of crack. First, hearsay evidence is admissible at
sentencing. Fed. R. Evid. 1101(d)(3). Also, the informant had
proven to be reliable both with respect to information about
Smith (for instance, the informant accurately described Smith’s
car) and in connection with another drug investigation.
Additionally, Smith was already suspected to be a drug dealer,
as evidenced by the recorded statements. Finally, the informant
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easily arranged the controlled purchase of one ounce of crack, *
suggesting that Smith previously had sold crack to the
informant. Under these circumstances, it was not clear error
for the district court to include the disputed amount of crack
as relevant conduct.
In a related argument, Smith contends that the court’s
reliance on hearsay evidence to determine relevant conduct
violated Crawford v. Washington, 541 U.S. 36 (2004). In
Crawford, the Supreme Court held that the Confrontation Clause
prohibits the admission at trial of testimonial statements that
are not subject to cross-examination. Id. at 50-51. We reject
Smith’s argument, and note that none of the circuits to have
considered Crawford following United States v. Booker, 543 U.S.
220 (2005), have concluded that the rule announced in Crawford
applies at sentencing. See United States v. Katzopoulos, 437
F.3d 569, 576 (4th Cir. 2006); United States v. Beydoun, 469
F.3d 102, 108 (5th Cir. 2006); United States v. Chau, 426 F.3d
1318, 1323 (11th Cir. 2005); United States v. Luciano, 414 F.3d
174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d
239, 243 (2d Cir 2005).
*
This transaction was not consummated because, prior to the
scheduled purchase, officers conducted a traffic stop of Smith’s
vehicle.
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III
Smith also argues that the district court committed
procedural and substantive error when it allegedly failed to
acknowledge his argument that a downward variance was warranted
because of pending legislation that would have changed the
powder-to-crack ratio in the Guidelines. The record refutes
Smith’s claim. The court plainly rejected his request for a
downward variance, stating, “I’m . . . not inclined to vary from
the guidelines because I think you’ve gotten a free pass about
every . . . way you’ve looked over the past few years.” The
court noted that Smith had received very lenient sentences for
drug offenses in state court. Further, Smith’s drug dealing had
harmed the community, which needed protection from his actions,
and there was a need to deter such conduct in the future. We
are satisfied from the court’s explanation of the sentence,
including the denial of the requested variance, that the court
“considered the parties’ arguments and ha[d] a reasoned basis
for exercising [its] own legal decisionmaking authority.’”
Carter, 564 F.3d at 328 (quoting Rita, 551 U.S. at 356).
IV
We hold that the arguments raised on appeal lack merit
and that Smith, who was sentenced at the bottom of his advisory
Guidelines range of 121-151 months, failed to rebut the
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presumption that his sentence is procedurally and substantively
reasonable. We therefore affirm. 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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