United States v. Smith , 194 F. App'x 155 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4101
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OLEN TYRONE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:03-cr-00210-WDQ)
Submitted: August 2, 2006 Decided: August 14, 2006
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, George L. Russell, III, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This appeal is before the court after our limited remand
for resentencing under United States v. Booker, 543 U.S. 220(2005). Olen Tyrone Smith appeals the sixty-month sentence imposed
after remand, on his convictions for possession with intent to
distribute Phentermine HC1, in violation of 21 U.S.C. § 841(a)(1)
(2000), and interference with commerce by threats or violence, in
violation of 18 U.S.C. § 1951(a) (2000). Smith challenges the
reasonableness of this sentence, contending that it is longer than
necessary to comply with the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006). We find, however, that the
district court sentenced Smith only after appropriately considering
and examining the sentencing guidelines and the § 3553(a) factors,
as instructed by Booker. We therefore affirm the sentence.
This court reviews the imposition of a sentence for
reasonableness. Booker, 543 U.S. at 260-61; United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). After Booker, courts
must calculate the appropriate guideline range, making any
appropriate factual findings. United States v. Davenport, 445 F.3d
366, 370 (4th Cir. 2006). The court then should consider the
resulting advisory guideline range in conjunction with the factors
under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and determine
an appropriate a sentence. Davenport, 445 F.3d at 370. If the
sentence exceeds the advisory guideline range, it will generally be
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deemed reasonable “if the reasons justifying the variance are tied
to § 3553(a) and are plausible.” United States v. Moreland, 437
F.3d 424, 434 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
Smith contends that his sentence is unreasonable because
consideration of the § 3553(a) factors justifies a downward
departure. He asserts that, based on the nature of the drug at
issue--a weight control drug, rather than a narcotic drug--and the
fact that he believed that he was acting under a lawful order from
his employer, as well as the fact that the force used was minimal--
using a box to push the victim back through the exit doors and into
some barrels--he should have received a downward departure from the
advisory range. The court considered these arguments and noted
that the drug type was factored into the determination of the
guideline range. The court also noted that the jury disbelieved
Smith’s defense that he believed he was acting pursuant to a lawful
order from his employer.
In imposing sentence, the district court increased the
sentence above the advisory guideline range, explaining that the
increase was based on facts learned at trial and based on the
nature of the defendant. The court also based the increase on the
nature of the offense, noting that it was a “greed-driven offense,”
and also noting that Smith had a prior conviction for a greed-
driven offense.
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Because the district court’s explanation for the sentence
above the advisory range shows that the court appropriately
considered the factors in § 3553(a) with respect to Smith and his
offense and also that it considered Smith’s arguments for a lesser
sentence, we find that the resulting sentence was reasonable. See
United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006);*
Hughes, 401 F.3d at 546.
Accordingly, we affirm Smith’s sixty-month sentence. 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
*
We note that the district court did not make any findings on
remand as to the amount of loss and therefore did not increase
Smith’s sentence on this basis. Under Booker and Hughes, the court
could have made the same amount-of-loss findings on remand that
were made during the initial sentencing and Smith could have
received the same sentence. See Davenport, 445 F.3d at 370.
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