United States v. Smith ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4881
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORDELL LESTER SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00067-FDW-DCK-1)
Submitted: February 25, 2011 Decided: March 21, 2011
Before NIEMEYER, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Cordell Lester Smith was
convicted of possession with intent to distribute a quantity of
crack cocaine, in violation of 21 U.S.C.A. § 841(a), (b) (West
1999 & Supp. 2010) (Count One), using and carrying one or more
firearms during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (2006) (Count Two), and
possession of one or more firearms by a convicted felon, in
violation of 18 U.S.C. § 922(g) (2006) (Count Three). The court
sentenced Smith in November 2007 to a total of 197 months’
imprisonment: 137 months on Count One, a concurrent 120 months
on Count Three, and a consecutive sixty months on Count Two. On
appeal, finding that the district court improperly presumed that
a sentence within the guidelines range would be reasonable, this
court vacated his sentence and remanded the case to the district
court for resentencing. See United States v. Smith, 566 F.3d
410 (4th Cir. 2009), cert. denied, 130 S. Ct. 1100 (2010).
At resentencing, as at the original sentencing, the
district court adopted the guidelines calculations established
in the presentence report (“PSR”). Counts One and Three were
grouped pursuant to U.S. Sentencing Guidelines Manual § 3D1.2(c)
(2007). The guideline for Count One, possession with intent to
distribute cocaine base, USSG § 2D1.1, produced a higher offense
level, twenty-eight; consequently, under USSG § 3D1.3(a),
2
Smith’s base offense level for Counts One and Three was twenty-
eight. With an offense level of twenty-eight and a criminal
history category of IV, Smith’s guidelines range on Counts One
and Three was 110 to 137 months’ imprisonment. USSG ch. 5, pt.
A (sentencing table). However, because the statutory maximum
sentence for Count Three under 18 U.S.C. § 924(a)(2) (2006) was
ten years, which was less than the top of the guidelines range,
pursuant to USSG § 5G1.1(c)(1), Smith’s guidelines range on
Count Three became 110 to 120 months’ imprisonment.
Additionally, pursuant to USSG § 2K2.4, Smith’s guidelines
sentence on Count Two was five years’ imprisonment.
Smith sought a downward variance sentence based on the
disparity between sentences for powder cocaine and crack
cocaine. After analyzing the 18 U.S.C. § 3553(a) (2006)
sentencing factors and considering Smith’s arguments for a
below-guidelines sentence, the district court again sentenced
Smith to 197 months’ imprisonment. Smith timely appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal but questioning the reasonableness of Smith’s
sentence. Smith filed a pro se supplemental brief asserting
additional claims. For the reasons that follow, we affirm.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
3
States, 552 U.S. 38, 51 (2007); see also United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51.
In determining procedural reasonableness, we consider
whether the district court properly calculated the defendant’s
advisory guidelines range, considered the § 3553(a) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. “Regardless
of whether the district court imposes an above, below, or
within-Guidelines sentence, it must place on the record an
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).
After reviewing the record, we conclude that the
district court properly calculated Smith’s advisory guidelines
range, considered the § 3553(a) factors, analyzed the arguments
presented by the parties, and gave a thorough explanation of the
sentence it selected. We therefore hold that Smith’s sentence
is procedurally reasonable. Where there is “no significant
procedural error,” the court next assesses the substantive
reasonableness of the sentence, taking “‘into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Morace,
4
594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S. at 51),
cert. denied, 131 S. Ct. 307 (2010).
Smith’s counsel questions whether the district court
clearly erred by finding that Smith “probably” flushed drugs
down the toilet and therefore probably possessed more than the
49.59 grams of crack attributable to him in the PSR. The court
found that a preponderance of the evidence established that
Smith “probably” was involved with more than fifty grams of
crack because, when the officers executed the search warrant and
entered his residence, they heard a toilet flush and encountered
Smith emerging from the bathroom. Inside the bathroom, the
officers discovered a glass plate with a small rock of crack,
two sets of scales, and a razor blade.
Although the court determined Smith’s offense level,
and hence his guidelines range, solely upon the 49.59 grams
seized from his bedroom, the issue of drugs flushed down the
toilet arose in the context of Smith’s request for a variance.
Specifically, the court rejected counsel’s assertion that Smith
was merely a low level dealer when arguing for the variance,
based in part on its conclusion that Smith had probably flushed
additional drugs down the toilet and therefore was involved with
more than 49.59 grams of crack.
Emphasizing that a search of the sewer lines from
Smith’s residence revealed no contraband, Smith’s counsel
5
suggests that the court clearly erred by finding that Smith
“probably” flushed drugs down the toilet. We disagree. Given
that there was crack belonging to Smith elsewhere in the house,
a small quantity of crack in the bathroom along with indicia of
drug dealing, and the fact that Smith flushed the toilet and
emerged from the bathroom as the officers entered the residence,
we conclude that the court did not clearly err by finding that
it was more likely than not that Smith flushed drugs down the
toilet and therefore was probably involved with more than the
49.59 grams for which he was held accountable. Cf. United
States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (holding
that preponderance of the evidence supported findings of drug
quantity for sentencing purposes where it “was more likely than
not that the defendant was responsible for at least the drug
quantity attributed to him”).
Next, Smith’s counsel questions whether the court
failed to adequately consider the disparity between the powder
cocaine and crack cocaine guidelines when sentencing Smith to a
within-guidelines sentence. The court addressed the issue at
length with counsel, noting that Smith obtained the benefit of
the 2007 amendments to the crack guidelines and stating that,
although the court had the discretion to impose a lesser
sentence, it was not obligated to do so. The court found that
Smith was more than a low level dealer based on the quantity of
6
drugs seized and the likelihood that he had flushed more drugs
down the toilet. The court concluded that a sentence within the
guidelines range, rather than a downwardly variant sentence, was
warranted because Smith utilized guns in his drug activities,
creating a risk of violence.
In Kimbrough v. United States, 552 U.S. 85 (2007), the
Supreme Court established that a district court does not abuse
its discretion by varying from the sentencing guidelines if it
has a policy disagreement concerning the disparity between crack
and powder cocaine sentences. See Spears v. United States, 555
U.S. 261, ___, 129 S. Ct. 840, 843 (2009). However, lower
courts have held that Kimbrough does not require a court to
impose a sentence below the guidelines range if it does not have
a policy disagreement with the guidelines. United States v.
Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009), cert. denied, 130
S. Ct. 2362 (2010); United States v. Caldwell, 585 F.3d 1347,
1355 (10th Cir. 2009), cert. denied, 131 S. Ct. 209 (2010);
United States. v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008).
Here, Smith received the benefit of the 2007 amendments to the
sentencing guidelines designed to address the powder cocaine/
crack cocaine sentencing disparity. By emphasizing that its
concern was with the combination of drugs with firearms in
Smith’s case and not with any continuing disparity between the
sentences for crack and powder cocaine offenses, we conclude
7
that the district court implied that it did not have a policy
disagreement with the guidelines. Because the district court
was not obligated to vary from that guidelines range under these
circumstances, the court’s decision not to downwardly vary did
not render Smith’s sentence substantively unreasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Smith’s sentence. ∗ Smith’s motion to file an
amended pro se supplemental brief is denied. This court
requires that counsel inform Smith, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Smith requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Smith. 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 conclude after our thorough review of Smith’s pro se
supplemental brief that he is not entitled to relief on any of
his pro se claims.
8