United States v. Smith Jean

Case: 15-11631 Date Filed: 06/07/2016 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11631
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20830-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SMITH JEAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 7, 2016)
Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Smith Jean and Beatrice Simeon were charged in a six-count indictment with
conspiracy to steal government property or money, in violation of 18 U.S.C.
§§ 371, 641, Count One, and with theft of government property or money, in
violation of 18 U.S.C. § 641, Counts Two through Six. Jean pled guilty to Counts
One and Two, and the District Court sentenced him to concurrent prison terms of
51 months. Jean now appeals his sentences. First, Jean argues that the District
Court erred in not adjusting his offense level under the Sentencing Guidelines
downward by one level, pursuant to U.S.S.G. § 3E1.1(b), for “assist[ing]
authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of guilty.” 1 Second, Jean
argues that his sentences are significantly harsher than Simeon’s, creating an
unwarranted sentencing disparity that renders his sentences substantively
unreasonable.
1
U.S.S.G. § 3E1.1., “Acceptance of Responsibility,” states:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense,
decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level
determined prior to the operation of subsection (a) is level 16 or greater, and upon
motion of the government stating that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by timely notifying authorities of his
intention to enter a plea of guilty, thereby permitting the government to avoid preparing
for trial and permitting the government and the court to allocate their resources
efficiently, decrease the offense level by 1 additional level.
2
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After the District Court pronounced sentence, it asked Jean and his lawyer
the following: “[D]oes the defendant or his counsel object to the Court’s findings
of fact or to the manner in which the sentence was pronounced?” Jean’s lawyer
responded, “No, Your Honor.”
In his opening brief on appeal, Jean cites U.S.S.G. § 3E.1.1 in advancing his
first argument, but he fails to state that he timely notified the government of his
intention to plead guilty or that the government abused its discretion in not moving
the District Court for a § 3E1.1(b) adjustment. But these two points are essential to
his § 3E1.1(b) argument. In failing to mention either point, Jean effectively
abandoned his first argument. See United States v. Barsoum, 763 F.3d 1321, 1333
(11th Cir. 2014).
Because Jean declined the District Court’s request to enter an objection to
the manner in which his sentenced was pronounced, we review his second
argument for plain error. United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th
Cir. 2014) (per curiam). To establish plain error, a party must show that (1) the
district court erred; (2) the error was plain or obvious; (3) the error harmed or
prejudiced the party’s substantial rights; and (4) the error damaged the fairness,
integrity, or reputation of the proceedings. Id. In order to meet the second prong
of the plain-error test, the error must be “contrary to explicit statutory provisions or
to on-point precedent in this Court or the Supreme Court.” United States v.
3
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Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (per curiam) (quotation marks and
citation omitted).
Jean points to no statute or precedent from this Court or the Supreme Court
that would have informed the District Court that the sentences it imposed were
substantively unreasonable. His second argument fails as well.
Jean’s sentences are therefore
AFFIRMED.
4