United States v. Gary Smith ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2676
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Gary Marcus Smith, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 1, 2008
Filed: May 6, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Gary Smith (Smith) challenges the 108-month
prison sentence the district court1 imposed following Smith’s guilty plea to securities
fraud and failure to register as a broker-dealer, in violation of 18 U.S.C. §§ 1348 and
2(b), and 15 U.S.C. §§ 78o and 78ff(a). Smith argues (1) the district court erred in
refusing to depart downward from the advisory Guidelines sentencing range based on
Smith’s extraordinary restitution efforts, and (2) his sentence is unreasonable.
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
Upon careful review of the record, we conclude the district court’s decision not
to depart downward is unreviewable, because the court was aware of its authority to
depart and of the arguments advanced in support of a downward departure, and
determined a departure was not warranted. See United States v. Miles, 499 F.3d 906,
909-10 (8th Cir. 2007) (explaining a district court’s awareness of the defendant’s
arguments precludes a conclusion the court abused its discretion in failing to adopt
them); United States v. Frokjer, 415 F.3d 865, 875 (8th Cir. 2005) (stating a district
court’s discretionary decision not to depart downward is unreviewable; declining to
review the defendant’s claim that she was entitled to a departure when the court
clearly recognized it had authority to depart and declined to exercise that authority).
We further conclude Smith’s sentence, at the bottom of the uncontested, advisory
Guidelines range, is not unreasonable. See United States v. McGhee, 512 F.3d 1050,
1051 (8th Cir. 2008) (per curiam) (holding, after United States v. Booker, 543 U.S.
220 (2005), this court reviews a sentence to determine whether the sentence is
unreasonable with regard to 18 U.S.C. § 3553(a) by applying a deferential abuse-of-
discretion standard, citing Gall v. United States, 128 S. Ct. 586, 591 (2007)); United
States v. Haack, 403 F.3d 997, 1003-04 (8th Cir. 2005) (declaring a district court
abuses its discretion by imposing an unreasonable sentence when the court overlooks
a relevant factor, gives significant weight to an improper or irrelevant factor, or makes
a clear error of judgment in weighing appropriate factors).
We affirm.
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