United States v. James Smith ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0539n.06
No. 21-5323
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 24, 2021
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff–Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
JAMES EARL SMITH, )
)
OPINION
Defendant–Appellant. )
)
Before: MOORE, GRIFFIN, and MURPHY, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. James Earl Smith, who pleaded guilty to
attempted marijuana possession, possession of a firearm in furtherance of a drug-trafficking crime,
and possession of a firearm as a felon, appeals his 144-month sentence as procedurally and
substantively unreasonable. He flags two alleged mistakes made by the district court: its failure
to recognize its discretion to vary from the Sentencing Guidelines, especially considering
marijuana’s legal status in some states; and its reference to an initiative involving increased
prosecution of firearm offenses. We AFFIRM the district court’s sentence.
I. BACKGROUND
Two undercover agents made a controlled purchase of firearms from Smith. R. 39 (PSR
at 5) (Page ID #87). One week later, Smith met with undercover agents to exchange a firearm for
a half pound of “prop” (imitation) marijuana. Id. at 6 (Page ID #88). After completing the
marijuana-for-gun transaction, agents took Smith into custody. Id.
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A federal grand jury indicted Smith for attempting to possess marijuana with intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846; possession of a firearm in furtherance
of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c); and knowing possession of firearms
as a felon, in violation of 18 U.S.C. § 922(g)(1). R. 2 (Indictment at 1–2) (Page ID #3–4). Smith
pleaded guilty to all three offenses. R. 28 (9/4/2020 Order on Change of Plea) (Page ID #42); R.
35 (10/16/2020 Order on Change of Plea) (Page ID #56).
The Presentence Report, to which Smith did not object, calculated Smith’s total offense
level at 23. R. 39 (PSR at 8) (Page ID #90). Smith had a criminal history category of V. Id. at 12(Page ID #94). With that total offense level and criminal history category, Smith had a guideline
imprisonment range of 84 months to 105 months for the attempted-distribution and felon-in-
possession charges, along with a consecutive five-year mandatory-minimum sentence for his
violation of 18 U.S.C. § 924(c). Id. at 17 (Page ID #99). Smith made no objection to the factual
statements or guidelines calculations in the PSR. R. 41 (Def. Position re: Sentencing Factors)
(Page ID #108).
The district court began the sentencing hearing by adopting the PSR. R. 49 (Sent’g Tr. at
3) (Page ID #132). The government recommended that Smith receive a sentence of 144 months:
84 months for the felon-in-possession and possession-with-intent-to-distribute charges, plus the
five-year mandatory minimum for possession of a firearm in furtherance of a drug-trafficking
crime. Id. at 4 (Page ID #133).
Smith argued that the district court should reduce Smith’s sentence from 144 months to ten
years due to many states having provided legal status for marijuana. R. 49 (Sent’g Tr. at 7–13,
15–16) (Page ID #136–42, 144–45). The district court declined to vary downward, citing
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marijuana’s illegality both federally and in Tennessee, and saying, “I don’t want anybody to think
this is a marijuana case. It’s not a marijuana case. It’s a gun case, and it’s possession of a firearm
in furtherance of a drug trafficking crime.” Id. at 13 (Page ID #142). The district court added that
it evaluated marijuana law “as it exists today.” Id. at 14 (Page ID #143). Later in the proceeding,
the district court opined on the importance of following the law, saying: “We want to follow the
law. And if the law is changed, we’ll follow it when it’s changed.” Id. at 52 (Page ID #181).
One other incident of note occurred during sentencing. While discussing deterrence, the
district court mentioned a “Richmond, Virginia” study. R. 49 (Sent’g Tr. at 44) (Page ID #173).
The district court implied that this study demonstrated that increased awareness of the illegality of
firearm possession as a felon led to a decrease in the illegal use and possession of firearms. Id.The district court apparently referred to “Project Exile,” a Richmond-based, law-enforcement
initiative involving aggressive prosecution of firearms offenses. See United States v. Venable, 666
F.3d 893, 897 (4th Cir. 2012).
After the district court entered its judgment, Smith timely appealed. R. 46 (Notice of
Appeal) (Page ID #125).
II. DISCUSSION
A. Standard of Review
We review sentencing decisions for procedural and substantive reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). A defendant need not
raise a substantive-reasonableness claim before the district court to preserve it. United States v.
Freeman, 640 F.3d 180, 185 (6th Cir. 2011). But if a defendant does not object to an alleged
procedural deficiency at a sentencing hearing, those unpreserved arguments receive plain-error
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review. Id. at 186. After announcing a proposed sentence, the district court must “ask the parties
whether they have any objections to the sentence just pronounced that have not previously been
raised.” United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). If a party fails to object, plain-
error review applies to any unpreserved procedural-reasonableness arguments. United States v.
Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).
The parties dispute whether Smith preserved either of the procedural issues that he raises
before us. The government argues that we should review for plain error. Smith counters with
abuse-of-discretion review. We address these positions as they relate to each issue.
B. Analysis
1. Procedural Unreasonableness
a. “Follow the Law”
Smith argues that the district court declined to consider Smith’s argument that the district
court should show leniency because some states have legalized marijuana and because the federal
government usually has declined to prosecute federal marijuana crimes in those states. This, Smith
contends, was an abuse of discretion because the district court treated the sentencing guidelines as
mandatory, reflected by the district court’s multiple references to its need to “follow the law.”
We review this claim for abuse of discretion because Smith properly preserved the
objection below. The district court, consistent with Bostic, called for objections that were “not
previously raised.” R. 49 (Sent’g Tr. at 59) (Page ID #188). Smith’s attorney had already engaged
in an extended colloquy with the district court concerning the requested marijuana variance. This
colloquy “previously raised” the objection to the district court’s failure to consider marijuana’s
legal status in certain states. See United States v. Blackie, 548 F.3d 395, 398 (6th Cir. 2008)
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(“We review for reasonableness [defendant’s] claim that the district court failed to consider his
family ties and responsibilities at sentencing because he had raised the issue prior to and during
the sentencing hearing, thus preserving it for appeal.” (emphasis added)).
Turning to the merits, we conclude that Smith’s argument fails. The district court’s
references to “following the law” are distinguishable from the language leading to reversal in the
cases that Smith cites. In those cases, the district judges believed that they could not vary from
the Guidelines at all. See, e.g., United States v. Camacho-Arellano, 614 F.3d 244, 248 (6th Cir.
2010); United States v. Johnson, 553 F.3d 990, 992 (6th Cir. 2009). Here, the district court did
not say that it could not deviate from the guidelines. Instead, it explained that it would not. The
district court said that “the marijuana is collateral here,” R. 49 (Sent’g Tr. at 12) (Page ID #141)
and that “[the case is] not a marijuana case. It’s a gun case.” Id. at 13 (Page ID #142); see also
id. at 13, 14, 37, 43, 45 (Page ID #142, 143, 166, 172, 174). The district court did at one point
state that “We don’t go on what the law might be in the future. We handle the law as it exists
today.” Id. at 14 (Page ID #143). But that referenced the district court’s willingness to reconsider
its decision if Congress legalized marijuana federally, not its unwillingness to consider the fact
that marijuana was the drug at issue. The idea that the district court mechanically applied the
Sentencing Guidelines is belied by the extended colloquy that the district court engaged in
concerning Smith’s argument for a downward variance or lenity. Id. at 5–17 (Page ID #134–46).
Even viewed in the light most favorable to Smith, this “misstatement” of the judge’s role would
not require reversal. United States v. Cherry, 487 F.3d 366, 373 (6th Cir. 2007) (quoting United
States v. Bolden, 479 F.3d 455, 468 (6th Cir. 2007)). The district court thus did not abuse its
discretion by failing to account for marijuana’s legal status in some jurisdictions.
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No. 21-5323, United States v. Smith
b. Project Exile
Smith argues that the district court abused its discretion by apparently discussing Project
Exile, a law-enforcement initiative involving aggressive prosecution of firearms offenses. Smith
points to empirical criticism of Project Exile, saying that the district court improperly mentioned
a study that lacks empirical support. The district court relied on the “Richmond, Virginia study”
in a limited context, however, pointing to it to show that “laws have a good effect” in incentivizing
deterrence. R. 49 (Sent’g Tr. at 44) (Page ID #173).
Because we would affirm the district court under either abuse-of-discretion or plain-error
review, we need not decide the standard of review. Smith argues that he had no opportunity to
object to the apparent reference to Project Exile at the sentencing hearing because the district court
did not actually ever identify the study such that defense counsel could present tailored objections.
We forgive a failure to object when a district court, in a hearing, does not mention the grounds for
its eventual ruling. United States v. Carpenter, 702 F.3d 882, 884 (6th Cir. 2012) (declining to
apply a plain-error standard where defendant had no opportunity to object to substance-testing
condition that the district court did not mention at sentencing hearing); United States v.
Richardson, 535 F. App’x 517, 518 (6th Cir. 2013) (per curiam) (applying abuse-of-discretion
standard where defendant had no “meaningful opportunity” to object); United States v. Logins,
503 F. App’x 345, 348 (6th Cir. 2012) (declining to apply plain-error standard where defendant
had no opportunity to object at hearing). Because Smith’s claim would fail under either standard
of review, we need not determine whether these cases apply.
Smith argues that the district court improperly invoked Project Exile because its effects do
not support the claim that harsher enforcement of gun laws has a deterrent effect. Smith argues
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that statistical analyses of Project Exile show no effect at best, and discriminatory impact at worst.
See Pet’r Br. at 17–22 (citing, inter alia, David E. Patton, Criminal Justice Reform and Guns: The
Irresistible Movement Meets the Immovable Object, 69 EMORY L.J. 1011 (2020)).
Regardless of these critiques’ strengths, Smith’s claim fails because the district court did
not base Smith’s sentence on Project Exile’s findings. Rather, the district court mentioned a
Richmond, Virginia study, which may have been Project Exile, as one part of one factor of the
sentencing decision. This opaque reference in a few lines of the transcript, in the context of a
discussion of general deterrence, is not an abuse of discretion. See United States v. Lopez
Paniagua, 828 F. App’x 307, 310 (6th Cir. 2020) (excusing a district court’s “passing remark”
concerning likelihood of recidivism of those involved in organized crime when there was no
evidence that this remark had “any impact on the district court’s sentencing decision.”).
2. Substantive Unreasonableness
Finally, Smith challenges the substantive reasonableness of his sentence. “A sentence is
substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence
on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable
amount of weight to any pertinent factor.” United States v. Tristan-Madrigal, 601 F.3d 629, 633
(6th Cir. 2010) (quoting United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008)). Unlike
procedural-reasonableness review, which asks whether a district court considered the relevant
factors, substantive-reasonableness review looks to whether the district court imposed a sentence
that failed to reflect those factors. Camacho-Arellano, 614 F.3d at 247 n.1. We presume that
sentences within a defendant’s guidelines range are substantively reasonable. United States v.
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Pirosko, 787 F.3d 358, 374 (6th Cir. 2015). As mentioned above, we review these challenges for
an abuse of discretion even if the appellant did not raise them below. Freeman, 640 F.3d at 185.
Smith argues that the district court gave an unreasonable amount of weight to all of the
§ 3553(a) factors1 by failing to understand that it could vary from the Guidelines based on policy
disagreements. Echoing his arguments above, Smith contends that the district court both did not
recognize that defendants charged with marijuana-based crimes may be prosecuted differently in
states that have legalized the drug and relied on “an outdated study with questionable results”—
again, presumably Project Exile—to suggest mistakenly that harsh gun sentences effectively deter
crime. See Pet’r Br. at 24–25.
Because Smith received a sentence within his guidelines range, R. 49 (Sent’g Tr. at 4, 56)
(Page ID #133, 185), we presume his sentence was substantively reasonable. The fact that a district
court may disagree with the sentencing guidelines for policy reasons does not mean that it must.
United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011). Smith fails to show that the district
court believed itself unable to vary from the Guidelines on policy grounds. To the contrary, the
district court considered and rejected Smith’s proposed variance, rejecting it so as to “avoid
unwarranted sentencing disparity.” See R. 49 (Sent’g Tr. at 51) (Page ID #180). The district court
said that it preferred a system in which judges “follow the law” to “one where it depends on who
you know and what you say that day and how somebody individually feels,” Id. at 31 (Page ID
#160), but added that it would not “blindly” apply the law. Id. at 30 (Page ID #159). This was not
1
Those factors include, inter alia, the nature and circumstances of the offense, the need for
the sentence imposed to reflect the offense’s seriousness and to deter others, the kinds of sentences
available, the need to avoid unwarranted sentence disparities, and the need to provide restitution
to any victims. 18 U.S.C. § 3553(a).
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an abuse of discretion. Furthermore, the brief, opaque reference to what may have been Project
Exile also does not render the sentence at the lower end of the guidelines range substantively
unreasonable.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s sentence.
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