United States v. Deon Smith ( 2017 )

Case: 16-60599 Document: 00513965759 Page: 1 Date Filed: 04/24/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60599
Fifth Circuit
FILED
Summary Calendar April 24, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
DEON SMITH,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:15-CR-150-1
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Deon Smith appeals his non-Guideline sentence of 60 months of
imprisonment, which was ordered to run consecutively to two prior concurrent
state sentences, following his guilty plea conviction for aiding and abetting the
uttering of counterfeit obligations or securities by passing counterfeit $100
bills. Smith contends that his five-year sentence for passing one counterfeit
$100 bill is procedurally and substantively unreasonable and that, by imposing
a non-Guideline sentence and ordering that it run consecutively to his state
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-60599
sentences, the district court imposed a sentence that is greater than reasonably
necessary in light of the 18 U.S.C. § 3553(a) sentencing factors.
Smith’s statement at the conclusion of the sentencing hearing that he
“object[ed] to the sentence” was not sufficiently specific to alert the district
court to the nature of the alleged errors and provide an opportunity for
correction. See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
Accordingly, our review is subject to the plain error standard of review. See
United States v. Peltier, 505 F.3d 389, 391-92, 394 (5th Cir. 2007). Smith must
therefore show that his substantial rights were affected by a clear or obvious
error, which we may correct if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Puckett v. United States, 556 U.S.
129, 135 (2009) (internal quotation marks and citation omitted).
We review sentences for reasonableness by engaging in a two-stage
review process. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th
Cir. 2009). We first consider whether the district court committed a procedural
error, such as failing to calculate or incorrectly calculating the guidelines
range, treating the Guidelines as mandatory, failing to consider the factors in
§ 3553(a), basing the sentence on clearly erroneous facts, or not adequately
explaining the sentence, including any deviations. Id. If a sentence is
procedurally proper, we proceed to review the substantive reasonableness of
the sentence. Id.
Smith fails to offer any precedent or other legal authority supporting his
contention that the district court committed a plain procedural error by
varying from the advisory guideline range while simultaneously ordering that
the sentence run consecutively to his state sentences. This “lack of binding
authority is often dispositive in the plain-error context.” United States v.
Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). In fact, we have recognized that
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a district court has discretion under 18 U.S.C. § 3584 to depart upwardly by
running sentences consecutively after considering the § 3553(a) factors, United
States v. Conlan, 786 F.3d 380, 394 & n.46 (5th Cir. 2015), and, in unpublished
decisions, we have affirmed sentences in which the district court varied
upwardly from the advisory guideline range and also imposed consecutive
sentences under § 3584. United States v. Aleman, ___ F. App’x ___, 2017 WL
128554, 2 (5th Cir. Jan. 12, 2017); United States v. Candrick, 435 F. App’x 404,
406 (5th Cir. 2011). Accordingly, Smith has failed to establish that the district
court committed a plain procedural error in varying from the Guidelines while
imposing a consecutive sentence. See Puckett, 556 U.S. at 135.
The Government concedes, however, that the district court relied in part
on inappropriate grounds for a variance by considering Smith’s prior arrests in
imposing his sentence. “[F]or a non-Guidelines sentence, just as for a
Guidelines sentence, it is error for a district court to consider a defendant’s
‘bare arrest record’ at sentencing.” United States v. Johnson, 648 F.3d 273,
278 (5th Cir. 2011). Even if we were to assume, in light of the Government’s
concession, that the district court erred in considering all three of Smith’s prior
arrests, there is no plain procedural error. See Puckett, 556 U.S. at 135. Given
the plain error standard of review, Smith is required to “demonstrate[] a
reasonable probability that he would have received a lesser sentence but for
the court’s consideration of the ‘bare’ arrest record.” United States v. Williams,
620 F.3d 483, 496 (5th Cir. 2010). Because he has failed even to assert that he
would have received a lesser sentence had the court not considered his prior
arrests, Smith has waived any argument that his sentence was plainly
procedurally unreasonable in this regard. See United States v. Green, 964 F.2d
365, 371 (5th Cir. 1992).
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In reviewing a non-Guideline sentence for substantive
unreasonableness, we will consider whether, under the totality of the
circumstances, the § 3553(a) factors support the sentence, “giv[ing] due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” United States v. Key, 599 F.3d 469, 475 (5th
Cir. 2010) (internal quotation marks and citation omitted). “A non-Guideline
sentence unreasonably fails to reflect the statutory sentencing factors where it
(1) does not account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor, or (3) represents
a clear error of judgment in balancing the sentencing factors.” United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Smith fails to allege, and has
therefore waived, any argument that the district court plainly erred by giving
significant weight to an improper sentencing factor or insufficient weight to a
sentencing factor deserving of significant weight. See id; Green, 964 F.2d at
371; Puckett, 566 U.S. at 135.
To the extent that Smith is asserting that his sentence is substantively
unreasonable because it represents a clear error of judgment in balancing the
sentencing factors, he has failed to show plain error. See Smith, 440 F.3d at
708; Puckett, 566 U.S. at 135. The sentencing record reflects that the district
court made an individualized assessment by reciting several of the § 3553(a)
sentencing factors before recounting Smith’s criminal history and concluding
that a variance was necessary because the advisory guideline range did not
adequately account for the § 3553(a) factors of promoting respect for the law,
affording adequate deterrence, and protecting the public. See Smith, 440 F.3d
at 707; § 3553(a)(2), (6)-(7). Even if it was improper to consider his prior
arrests, Smith’s recent criminal history of multiple shootings, convictions, and
revocations of post-release supervision provides sufficient support for the
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district court’s stated sentencing concerns. Furthermore, while the extent of
the district court’s variance from 14 months to 60 months of imprisonment is
sizeable, we have upheld similarly large variances. See Key, 599 F.3d at 475
(finding no abuse of discretion in extent of variance from 57 months to 216
months of imprisonment); United States v. Brantley, 537 F.3d 347, 348-50 (5th
Cir. 2008) (finding no plain error in extent of variance from 51 months to 180
months of imprisonment). The judgment of the district court is AFFIRMED.
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