United States v. Smart ( 2023 )

Case: 22-20409 Document: 00516937922 Page: 1 Date Filed: 10/19/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-20409
FILED
October 19, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jimmy Lee Smart,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CR-292-1
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit
Judges.
Per Curiam:*
Jimmy Lee Smart appeals the sentence imposed following his
conviction for possessing a counterfeit mail key. He argues the district court
erred by applying a 12-level loss enhancement. These are Smart’s
contentions: (1) there was no evidence of actual loss and (2) while the
Guidelines commentary expands the definition of loss to included intended
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.4.
Case: 22-20409 Document: 00516937922 Page: 2 Date Filed: 10/19/2023
No. 22-20409
loss, such an expansion is erroneous under the deference doctrine refined in
Kisor v. Wilkie, 139 S. Ct. 2400 (2019). See U.S.S.G. § 2B1.1(b)(1) & cmt.
n.3(A). He also challenges the Guidelines commentary’s providing for a
$500 minimum loss amount per unauthorized access device. See § 2B1.1
cmt. n.3(F)(i).
After filing his appellate brief, Smart filed an unopposed motion for
summary disposition. He concedes his argument is foreclosed by our recent
decision in United States v. Vargas, 74 F.4th 673, 678 (5th Cir. 2023) (en
banc). There we held that Kisor’s less deferential framework does not govern
the Guidelines and its commentary. Smart seeks to preserve his argument
for further review and acknowledges that his latter argument does not affect
the Guidelines calculations.
Summary disposition is appropriate in cases in which, among other
instances, “there can be no substantial question as to the outcome of the
case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Smart is correct that his argument is foreclosed. Accordingly, Smart’s
motion for summary disposition is GRANTED, and the district court’s
judgment is AFFIRMED.
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