United States v. Gary Smith

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2037
___________________________
United States of America
Plaintiff - Appellee
v.
Gary Lee Smith
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Joplin
____________
Submitted: February 14, 2022
Filed: March 24, 2022
[Published]
____________
Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
____________
PER CURIAM.
In 2003, Gary Lee Smith was convicted of producing, transporting, and
reproducing child pornography in violation of 18 U.S.C. §§ 2251(1)(a), 2252(a)(1),
and 2252(a)(2). He was sentenced to 235 months in prison and five years of
supervised release. United States v. Smith, 367 F.3d 748, 749 (8th Cir. 2004)
(affirming conviction and sentence). In 2019, he began supervised release. After
violating the conditions of his release, the district court 1 revoked his supervision and
sentenced him to three years in prison. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
Smith believes the district court impermissibly lengthened his sentence so he
could participate in a sex offender treatment program, in violation of Tapia v. United
States. See Tapia, 564 U.S. 319, 335 (2011) (holding that “a court may not impose
or lengthen a prison sentence to enable an offender to complete a treatment program
or otherwise to promote rehabilitation”). Because Smith did not raise this issue at
sentencing, this court reviews for plain error. See United States v. Holdsworth, 830
F.3d 779, 785 (8th Cir. 2016) (“Many potential Tapia errors will not require remand
under plain error review.”). Plain error requires an error, that was clear or obvious,
affected substantial rights, and seriously affects the “fairness, integrity or public
reputation of judicial proceedings.” United States v. Barthman, 919 F.3d 1118,
1120-21 (8th Cir. 2019).
At sentencing, the parties discussed treatment programs and whether a three-
year sentence would be enough time for Smith to participate in one through the
Bureau of Prisons (BOP). During allocution, Smith stated that he wanted “to get
back into treatment” because “I believe that was helping me.” But the district court
made clear its sentence was imposed “notwithstanding” the treatment options. See
United States v. Werlein, 664 F.3d 1143, 1147 (8th Cir. 2011) (“no plain Tapia error
occurs where a district court never expresses an intention to lengthen a defendant’s
sentence for rehabilitative purposes” (cleaned up)). Rather, the court imposed the
statutory maximum because Smith’s violations showed he was not amenable to
supervised release and posed a danger to children in the community. See United
States v. Replogle, 678 F.3d 940, 943 (8th Cir. 2012) (holding no “obvious” Tapia
violation where “[d]eterrence, respect for the law, and protection of the public were
the dominant factors in the district court’s analysis”).
1
The Honorable Brian C. Wimes, United States District Court Judge for the
Western District of Missouri.
-2-
The court did not plainly err in discussing Smith’s treatment options or
recommending he be placed into a facility with a treatment program because the
length of the sentence was not based on treatment or rehabilitative purposes. See
Tapia, 564 U.S. at 334 (noting that a “court commits no error by discussing the
opportunities for rehabilitation within prison or the benefits of specific treatment or
training programs” and a “court may urge the BOP to place an offender in a prison
treatment program”).
Smith asserts his sentence is substantively unreasonable. This court reviews
for abuse of discretion. See United States v. Steele, 899 F.3d 635, 638 (8th Cir.
2018). The district court considered the § 3553(a) factors—particularly the
seriousness of the violations and the danger to the community—in imposing the
sentence. Smith used unmonitored computers without permission, interacted with
another federal sex offender also on supervised release and lied about it, repeatedly
interacted with a 16-year-old girl and lied about it, failed to complete sex offender
treatment, created two internet companies without permission, and possessed adult
pornography. The court also considered that it was Smith’s second violation of
supervised release. See United States v. Smith, 960 F.3d 1107 (8th Cir. 2020)
(upholding challenged condition of supervised release). The district court did not
err in imposing the statutory maximum. See United States v. Doe, 516 Fed. Appx.
604, 605 (8th Cir. 2013) (“It is not unreasonable for a district court presented with
an incorrigible defendant to impose a lengthy sentence and then discharge the
defendant from supervision.”).
*******
The judgment is affirmed.
______________________________
-3-