United States v. Smith , 295 F. App'x 611 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 3, 2007
Charles R. Fulbruge III
Clerk
No. 06-20123
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CHARLES EARL SMITH
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:05-CR-212-3
Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
Defendant-appellant Charles Earl Smith appeals the sentence
imposed by the district court upon his convictions for one count
of conspiracy to steal mail, in violation of 18 U.S.C. §§ 371 and
1708, and two counts of aiding and abetting in the theft of mail,
in violation of 18 U.S.C. §§ 2 and 1708. He argues on appeal
that the district court erred by: (1) sua sponte departing from
the Sentencing Guidelines range without giving advance notice to
*
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that this opinion should not be published and is not precedent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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the defense and (2) refusing to treat his four 1999 Texas forgery
convictions as “related” sentences under § 4A1.2(a)(2) of the
Sentencing Guidelines. For the following reasons, we AFFIRM the
sentence imposed by the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-appellant Charles Earl Smith admitted to stealing
outgoing mail from mailboxes to obtain checks on two occasions,
once in September 2004 and again in October 2004. His co-
defendants, Ronald Gale Thibodeaux and Dezra Omar Duff, also
participated in this scheme. After obtaining the checks the
defendants would take the checks to a “guy named Rex.” Rex would
then take the checks to someone else who would “wash” them and
insert new dollar amounts and name either Smith, Duff, or
Thibodeaux as the new payee. Then the new payee would cash the
check, keeping half and giving half to Rex.
Smith, Thibodeaux, and Duff were charged in an indictment
with one count of conspiracy to steal mail, in violation of 18
U.S.C. §§ 371 and 1708, and two counts of aiding and abetting
each other in the theft of mail, in violation of 18 U.S.C. §§ 2and 1708. Smith pleaded guilty to the charges.
Applying the U.S. Sentencing Guidelines (“U.S.S.G.”), the
Presentence Investigation Report (“PSR”) calculated Smith’s total
offense level at eight and his criminal history at VI, resulting
in an advisory sentencing range of eighteen to twenty-four
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months’ imprisonment. Smith raised two objections to the PSR.
First, Smith objected to the amount of loss attributed to him
based on holding him accountable for co-defendants who cashed
stolen mail checks before he entered the conspiracy. Second,
Smith objected that the four forgery offenses from 1999 should
not be counted separately, but rather considered “related” cases
under U.S.S.G. § 4A1.2(a)(2). The court granted Smith’s
objection to the amount of loss attributed to Smith, which
lowered the total offense level to six, with an advisory
sentencing range of twelve to eighteen months, but denied the
objection relating to the forgery offenses.
The district court sentenced Smith to thirty months’
imprisonment on each count to run concurrently.
II. DISCUSSION
A. Rule 32(h) Notice
Smith does not claim that the extent of the departure was
unreasonable or that the resulting sentence was unreasonable.
Rather, Smith argues that the district court erred by sua sponte
departing1 upwardly without any advance notice to the defense, as
1
The briefs for Smith and the government both treat the
sentence as a Guidelines sentence, as distinguished from a non-
Guidelines sentence, and the government concedes error, see
infra, in the failure of the district court to give notice that
it was considering an upward departure. Neither party has
identified or briefed the question whether, post United States v.
Booker, 543 U.S. 220 (2005), the district court is required to
give such notice in the case of a Guidelines sentence or a non-
Guidelines sentence. Accordingly, we assume, without deciding,
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required by Rule 32(h) of the Federal Rules of Criminal
Procedure. The government concedes that the district court erred
by departing from the Sentencing Guidelines without providing
advance notice to the parties but contends that the error was
harmless. The doctrine of harmless error applies because Smith
timely objected to the lack of notice. See United States v.
Olano, 507 U.S. 725, 734 (1993). Harmless error, which must be
disregarded, is “[a]ny error, defect, irregularity, or variance
that does not affect [the] substantial rights” of the defendant.
FED. R. CRIM. P. 52(a). “An error affects substantial rights []
if it affects the outcome of the district court proceedings.”
United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005)
(citing Olano, 507 U.S. at 734; United States v. Akpan, 407 F.3d
360, 377 (5th Cir. 2005); United States v. Munoz, 150 F.3d 401,
413 (5th Cir. 1998)). Smith objected to the lack of notice at
sentencing; thus, the burden is on the government to show that
the error was harmless and did not affect the sentence received.
Id. The government has met its burden.
Rule 32(h) states:
Before the court may depart from the
applicable sentencing range on a ground not
identified for departure either in the
presentence report or in a party’s prehearing
submission, the court must give the parties
reasonable notice that it is contemplating
such a departure. The notice must specify any
ground on which the court is contemplating a
that such a notice was required.
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departure.
FED. R. CRIM. P. 32(h).
At sentencing, the district judge made clear that he
departed upward from the Guidelines range not only because of
the nature and circumstances of the offense but also because the
shorter sentences Smith received in the past had not adequately
deterred Smith from committing additional forgeries and similar
crimes.
Smith argues that had he been given notice that the
district court was considering departing upward from the range
based on Smith’s criminal record, then he could have
investigated the criminal history of his two co-defendants, who
received shorter sentences. However, this evidence would have
changed the sentence given by the district judge. Although
Thibodeaux did have three felony forgery convictions on his
record, those convictions were not as recent as Smith’s and
Thibodeaux was in a lower criminal history category.2 Because
the district judge stated that he thought the range suggested by
the Sentencing Guidelines substantially understated the
seriousness of this defendant’s conduct, it is highly unlikely
that the district judge would have adjusted Smith’s sentence
merely because his co-defendant had three felony convictions for
2
Two of Thibodeaux’s convictions were from 1980, and the
other was from 1998.
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forgery.3 Accordingly, we find that the failure of the district
court to give notice of a potential upward departure, if error
it was, constituted harmless error.
B. “Related” Cases Under U.S.S.G. § 4A1.2(a)(2)
Smith claims that the trial court erroneously failed to
treat his four prior forgery sentences from 1999 as related
under U.S.S.G. § 4A1.2(a)(2) and erroneously assigned separate
criminal history points for each. The Sentencing Guidelines
provide that, in assessing a defendant’s criminal history
points, “[p]rior sentences imposed in related cases are to be
treated as one sentence for purposes of § 4A1.1(a),(b), and
(c).” U.S.S.G. § 4A1.2(a)(2). The commentary to the U.S.S.G.
§ 4A1.2 defines “related cases” as follows:
Prior sentences are not considered related if
they were for offenses that were separated by
an intervening arrest (i.e., the defendant is
arrested for the first offense prior to
committing the second offense). Otherwise,
prior sentences are considered related if they
resulted from offenses that (A) occurred on
the same occasion, (B) were part of a single
common scheme or plan or (C) were consolidated
for trial or sentencing.
U.S.S.G. § 4A1.2, cmt. n.3. Smith’s argument focuses on whether
his prior forgery convictions were functionally consolidated for
3
That it is unlikely that the judge would have sentenced
Smith to a lesser sentence had Smith presented more detailed
descriptions of the co-defendants’ history is underscored by the
fact the judge knew that both co-defendants were in lower
criminal history categories than Smith. Smith’s argument makes
clear that the only new information he would have presented is
that Thibodeaux had forgery convictions.
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trial or sentencing.
Generally, we review de novo the district court’s
application of the Sentencing Guidelines. See United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005). However, the
determination whether prior convictions were functionally
consolidated for trial or sentencing is a question of fact that
is afforded deferential review under the clear-error standard.
See Buford v. United States, 532 U.S. 59, 66 (2001). A finding
is not clearly erroneous if it is plausible in light of the
record as a whole. See Anderson v. City of Bessemer City, North
Carolina, 470 U.S. 564, 574 (1985).
Smith committed four forgery offenses in January 1999 on
different dates, in different locations, against different
individuals and banks, with different amounts. He was arrested
for all four offenses on the same day. He also received his
sentence for all four offenses by the same court on the same
date and received one year in jail, to be served concurrently,
for each offense. However, there was no formal consolidation
order, and the cases had different docket numbers.
Smith argues that his prior forgery convictions should be
considered consolidated because the requirements under LaPorte
v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992), have been met.
LaPorte held that in certain situations in which a defendant
stands trial for more than one offense in a single proceeding,
the lack of formal consolidation will not prevent application of
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the Texas statute which prohibits consecutive sentencing for
consolidated sentences. Id. at 413-14. However, Smith’s
argument fails because this court has determined that LaPorte is
not dispositive of the consolidation issue for § 4A1.2 purposes.
United States v. Fitzhugh, 984 F.2d 143, 147 n.18 (5th Cir.
1993).
As part of this argument, Smith also contends that the four
forgeries would be considered the same criminal episode pursuant
to the Texas Penal Code and that the probation officer conceded
this fact in the PSR. But Smith has not supported this argument
with facts other than to state that the offenses are part of the
same criminal episode because they are repeated commissions of
the same offense. The probation officer merely stated that they
appear to be part of a common scheme or plan, presumably in
light of the fact that all four occurred in the same month and
involved similar activity. The PSR does not concede that the
cases are related. Rather it cites United States v. Ford and
notes that similar offenses are not necessarily part of a common
scheme or plan for relatedness purposes. See 996 F.2d 83, 86
(5th Cir. 1993). To be part of a common scheme or plan, there
must be evidence that they were jointly planned or that the
commission of one would entail the commission of the other. See
United States v. Robinson,187 F.3d 516, 520 (5th Cir. 1999)
(holding that crimes were related when the defendant planned the
commission of the second crime during the course of the first
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crime). No such evidence exists in this case.
The district court’s findings that the forgeries were not
consolidated and thus not related is also consistent with Fifth
Circuit authority. We have held that in the absence of a formal
consolidation order, the listing of multiple offenses in the
same criminal information under the same docket number is
sufficient to find those offenses were functionally
consolidated. See United States v. Huskey, 137 F.3d 283, 288
(5th Cir. 1998). Whether a case was functionally consolidated
is less clear when cases have different docket numbers, but
cases will not be deemed consolidated just because the defendant
was sentenced for each offense on the same day or received
identical, concurrent sentences. See United States v. Kates,
174 F.3d 580, 584 (5th Cir. 1999) (holding two drug possession
offenses that occurred one week apart were not related even
though the defendant was sentenced by the same judge on the same
date for each offense and the sentences were concurrent).
The district court did not clearly err in concluding that
the four prior forgery sentences were unrelated.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Smith’s sentence.
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