United States v. Betty Smith , 595 F. App'x 653 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2048
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Betty Patricia Smith
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 12, 2015
Filed: March 5, 2015
[Unpublished]
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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
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LOKEN, Circuit Judge.
After Betty Smith was arrested on unrelated charges, police found a loaded .40
caliber pistol in her pants pocket, twenty-three individual bags of marijuana and
eleven of cocaine in her car, and $1,553 in cash on her person. Charged with firearm
and drug distribution offenses, Smith pleaded guilty to being a felon in possession of
a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). At sentencing, the
district court1 determined, without objection, an advisory guidelines sentencing range
of 27 to 33 months in prison. Smith sought a downward variance to a sentence of
time-served. The government urged a guidelines-range sentence. Granting a lesser
downward variance, the district court sentenced Smith to 21 months in prison
followed by three years of supervised release. Smith appeals, arguing her sentence
is substantively unreasonable because “the district court abused its discretion when
it failed to give sufficient weight to [her] history and characteristics in imposing a
sentence.” We affirm.
The Presentence Investigation Report described Smith’s tragic upbringing --
born in federal custody; addicted to controlled substances at an early age; raised by
her grandmother because her mother was incarcerated; physically abused at home;
and sexually abused beginning at a young age by family members and church
ministers. Smith has a long history of substance abuse; has been diagnosed with
depression, bipolar disorder, anxiety disorder, and schizophrenia; and has attempted
suicide at different times. Smith also presented evidence of a strong support group
at the present time -- her life partner and her partner’s four children attended the
sentencing hearing -- and she attended drug and mental health counseling sessions
while on pretrial supervision. Citing this combination of mitigating factors, and the
absence of violent offense conduct, defense counsel argued that a sentence of time-
served and a maximum term of supervised release would be sufficient.
The district court granted a downward variance, citing Smith’s support network
and the mental health issues and abuse she has suffered. The court then weighed
these considerations against Smith’s offense conduct and criminal history -- she has
prior controlled substance and concealed weapon convictions -- and concluded that
1
The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
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a 21-month prison term “is sufficient, but not more than necessary, to meet the
statutory sentencing objectives”:
You had drugs, and it was pretty clear based on the evidence, you were
selling the drugs . . . But the most significant thing is that you had a
stolen gun that’s fully loaded, with a round in the chamber, with 13
rounds in the magazine. And that’s not the first time that you have been
arrested with a gun in your possession. . . . So I’m concerned and
concerned about protecting the community.
The district court has “wide latitude” to weigh relevant sentencing factors, and
the court weighing those factors differently than the defendant prefers does not alone
justify reversal. United States v. Wilcox, 666 F.3d 1154, 1157 (8th Cir. 2012). Here,
the district court carefully considered the 18 U.S.C. § 3553(a) factors, addressed
Smith’s support network, personal history, and mental illness, and expressly weighed
those against her conduct, her criminal history, and the need to protect the public.
Compare United States v. Anderson, 674 F.3d 821, 828 (8th Cir. 2012). “Where a
district court has sentenced a defendant below the advisory guidelines range, it is
nearly inconceivable that the court abused its discretion in not varying downward still
further.” United States v. Deering, 762 F.3d 783, 787 (8th Cir. 2014) (quotation
omitted). This is not the “unusual case when we reverse a district court sentence . . .
as substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th
Cir. 2009) (en banc).
The judgment of the district court is affirmed.
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