United States v. Corey Smith ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 9, 2005
Decided April 4, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-2526
UNITED STATES OF AMERICA, )
) Appeal from the United States
Plaintiff-Appellee, ) District Court for the Northern
) District of Indiana, Fort Wayne
) Division
v. )
) No. 02 CR 71-2
COREY A. SMITH, )
) William C. Lee, Judge.
Defendant-Appellant. )
ORDER
This case returns to us following re-sentencing of defendant Corey Smith in
the wake of the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738(2005). See United States v. Smith, 393 F.3d 717, 720 (7th Cir. 2004). The district
judge on remand re-sentenced Smith to the same prison term it had originally
imposed, recognizing that it now had discretion to impose a sentence outside of the
advisory Guidelines range. R. 101; R. 106 at 5-6. Smith again appealed, but his
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396No. 05-2526 Page 2
(1967), contending that no non-frivolous grounds for appeal remain at this point.1
On October 7, 2005, we issued an order directing Smith’s counsel to address
two issues that we identified as potentially meritorious: (1) whether the district
complied with its obligation to consider the sentencing factors set forth in 18 U.S.C.
§ 3553(a), see Booker, 543 U.S. at 259-60, 125 S. Ct. at 764-65; United States v.
Dean, 414 F.3d 725, 728 (7th Cir. 2005), given that the court did not mention
section 3553(a) or the factors set forth therein when it re-sentenced Smith; and (2)
whether Smith’s sentence is reasonable, see Booker, 543 U.S. at 260-61, 125 S. Ct.
at 765; United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005), cert. denied,
126 S. Ct. 106 (2005), and cert. denied, 126 S. Ct. 1343 (2006). We asked Smith’s
attorney either to brief the merits of these issues or, in the alternative, to file a
supplemental Anders brief explaining why he believes that no non-frivolous
argument can be made as to either issue.
Concluding that Smith cannot make a non-frivolous argument on either of
the two issues we raised, Smith’s counsel has filed a supplemental Anders brief
setting out the rationale that has led him to this conclusion. With respect to the
section 3553(a) sentencing factors, Smith’s counsel points out that when it re-
sentenced Smith, the court referred to and incorporated the reasons it had given
for imposing the same sentence at Smith’s first sentencing hearing. R. 106 at 6.
Those reasons, although they were not articulated with express reference to section
3553(a), were consistent with the types of sentencing factors set forth in section
3553(a). As for the reasonableness of the sentence, Smith’s counsel observes that
because it falls within the advisory Guidelines range, it is presumptively
reasonable. Counsel represents that he knows of no circumstance that would rebut
this presumption.
Having reviewed the record, we agree that Smith is unable to make a non-
frivolous argument that his sentence is invalid because the district court did not
expressly cite and consider the section 3553(a) sentencing factors in re-sentencing
Smith. We have previously stated that a district court is not obliged to discuss
those factors exhaustively, United States v. George, 403 F.3d 470, 472-73 (7th Cir.),
cert. denied, 126 S. Ct. 636 (2005), or even to cite section 3553(a), United States v.
Laufle, 433 F.3d 981, 987-88 (7th Cir. 2006), so long as the record assures us that
the court gave meaningful consideration to the types of sentencing factors that the
statute identifies, id. at 987 (citing United States v. Williams, 425 F.3d 478, 480
(7th Cir. 2005), cert. denied, 126 S. Ct. 1182 (2006)); see also United States v.
1
The court invited Smith to file a response to his counsel’s Anders brief, but
Smith did not do so.
No. 05-2526 Page 3
Cunningham, 429 F.3d 673, 676 (7th Cir. 2005). In this case, the court’s remarks
on re-sentencing Smith were quite brief; as we noted in our October 7, 2005 order,
the court treated the proceeding more as a remand pursuant to Paladino, 401 F.3d
at 483-84, than as a de novo re-sentencing. See R. 106 at 4-6. No doubt, the brevity
of the court’s rationale for imposing the same sentence is due in large part to the
fact that the parties themselves made only abbreviated arguments on remand: the
government contended that the court should impose the same sentence for the same
reasons it had originally, while Smith contended that a lesser sentence was
warranted given that the judge’s finding on obstruction of justice had increased the
Guidelines sentencing range. The court considered and rejected the latter
argument, and otherwise noted that it believed the same sentence was warranted
for the same reasons that it had articulated at the original sentencing. R. 106 at 6.
As Smith’s counsel points out, the findings set forth in the detailed pre-sentencing
memorandum that the court issued in advance of the original sentencing (resolving
Smith’s objections to the probation officer’s pre-sentence report) track a number of
the sentencing factors set forth in section 3553(a). For example, the court not only
found that Smith had intentionally lied during his trial testimony, but it also
rejected Smith’s contention that a Criminal History Category of II was
inappropriately high along with Smith’s contention that a downward departure was
warranted based on his adverse home environment while he was a child, his prior
drug use, and his educational background. R. 81. In resolving these issues, the
court was necessarily taking into account such factors as the history and
characteristics of the defendant, the gravity of his criminal conduct, the need to
promote respect for the law and to provide just punishment for the offense, and
avoid unwarranted sentencing disparities among similarly-situated defendants.
See § 3553(a) (1), (2), and (6). On the other hand, now that Booker has rendered the
Sentencing Guidelines advisory, these statutory sentencing factors have become
more important, see Dean, 414 F.3d at 728, and district judges have much more
leeway than they did prior to Booker to rely on these broad criteria in fashioning an
appropriate sentence. Arguably, then, the district court’s implicit consideration of
these criteria at the original sentencing did not relieve the court of the obligation to
weigh the statutory sentencing factors anew on re-sentencing.
Yet, even if we assume that the court should have given the section 3553(a)
factors more attention, we can discern no potentially meritorious basis for
contending that Smith was harmed by the omission. First, the court understood
that in the wake of Booker and pursuant to this court’s remand, it had the authority
to impose a different sentence than the one originally imposed, including one
outside of the now-advisory Guidelines. The court considered that possibility and,
based on the totality of the circumstances, concluded that a different sentence was
not warranted. Second, the court gave the parties the opportunity on re-sentencing
to identify any factors that supported a sentence within or without the Guidelines
No. 05-2526 Page 4
range. Third, as we have noted, Smith argued only one circumstance – the
obstruction of justice enhancement, based on the judge’s finding that Smith had
perjured himself at trial – that in Smith’s view warranted a sentence below the
Guidelines range. The court considered that circumstance and concluded that it did
not justify a different sentence. Fourth, as we discuss below in regard to the
reasonableness of the sentence, nothing in the record stands out as a circumstance
so unusual in kind or degree as to demand a sentence below the Guidelines range.
Under these circumstances, the court’s omission to expressly consider the section
3553(a) factors in re-sentencing Smith was harmless.
Having reviewed the record, we further conclude that no arguably
meritorious argument can be made that Smith’s re-imposed sentence is
unreasonable. Because it is within the range recommended by the Sentencing
Guidelines, the sentence is presumptively reasonable, and Smith would bear the
burden of rebutting that presumption. United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005).
The sole ground that Smith has preserved as a basis for contending that the
sentence is unreasonable is the obstruction of justice enhancement pursuant to
section 3C1.1 of the Guidelines. Smith emphasized below that the enhancement
was based on a judicial rather than a jury determination that he had given false
testimony at trial. However, the Supreme Court’s decision in Booker solved the
Sixth Amendment problem presented by such enhancements not by requiring jury
findings as to the underlying facts but rather by severing and excising the statutory
provision compelling courts to follow the Sentencing Guidelines. See Booker, 543
U.S. at 258-59, 125 S. Ct. at 764. District courts remain obliged to consult the
Guidelines in arriving at an appropriate sentence, and for that purpose they must
apply the relevant Guidelines provisions and make the necessary factual
determinations just as they did before Booker. See, e.g., United States v. Della Rose,
435 F.3d 735, 738 (7th Cir. 2006). Thus, the fact that the obstruction enhancement
was based on a factual determination by the judge rather than the jury is neither
here nor there vis-à-vis the reasonableness of the sentence. Smith went on to
suggest below that the increase in his offense level and the resulting sentencing
range triggered by the enhancement was out of proportion to the conduct on which
the court had based the enhancement. But the district court reasonably rejected
that suggestion, noting that Smith had not simply denied his guilt when he took the
witness stand at trial, but had given testimony rife with “misinformation and
obfuscation”. R. 106 at 6. In short, the obstruction enhancement and the resulting
increase in Smith’s offense level and sentencing range does not call into question
the reasonableness of his sentence.
Any other basis for challenging the reasonableness of the sentence was not
No. 05-2526 Page 5
argued below, and we would assess such a ground pursuant to a plain-error
standard. E.g., United States v. Hawk, 434 F.3d 959, 961-62 (7th Cir. 2006).
Having independently reviewed the record, we have found no other circumstance so
compelling that it might be thought to rebut the presumptive reasonableness of
Smith’s Guidelines sentence. Smith was sentenced based on his participation in the
sale of 25.47 grams of crack cocaine to an undercover police detective. Although it
was co-defendant Alonzo Grant who negotiated the transaction with the detective,
Smith was, as the district court noted, “clearly right at the heart of the transaction.”
R. 81 at 12 n.8. The Guidelines sentencing range in this case was based on the
amount of crack cocaine involved in this transaction alone, so there can be no
argument that relevant drug quantity was disproportionate to the offense of
conviction or Smith’s involvement in that offense. According to the probation
officer’s pre-sentence report, Smith reports having dropped out of school in the
ninth grade and having begun to use drugs at the age of 15. He was raised by his
mother alone (he saw his father only occasionally), but he described his upbringing
as “good.” R. 82 at 13 ¶ 82. Although Smith’s background can hardly be described
as ideal, the record discloses nothing so extraordinary as to suggest that reason
demands a sentence outside of the Guidelines range.
For these reasons, finding that there is no non-frivolous ground on which
Smith could challenge his sentence at this juncture, we GRANT his counsel’s
motion to withdraw and summarily AFFIRM his sentence as a reasonable one.