US v. Robert Smith, No. 08-4815 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4815 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT DAWAYNE SMITH, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:07-cr-00580-AMD-1) Submitted: June 23, 2009 Decided: July 10, 2009 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Christopher Flohr, BLACKFORD & FLOHR, LLC, Severna Park, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Cheryl L. Crumpton, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Dawayne Smith was convicted of possession of a firearm by mandatory a convicted minimum felon sentence and of 180 sentenced months to the statutory imprisonment. On appeal, Smith challenges both his conviction and sentence. We affirm. I. Smith first asserts that the district court erred in denying his motion for a mistrial disclosure of a police report. of the defense was that the based on the untimely According to Smith, his theory police did not do a thorough investigation to determine the owner of the firearm at issue, and counsel spoke in his opening argument about that fact that, of all the police officers involved, only Officer Mezan created a report. Smith s counsel highlighted this fact in attempting to create a picture of lackadaisical police procedure. Smith asserts that counsel s credibility was Thus, irreparably damaged when a second police report authored by Mezan surfaced. We review the denial of a motion for a mistrial for abuse of discretion. United States v. Dorlouis, 107 F.3d 248, 257 (stating (4th Cir. 1997) that a district court s ruling denying a motion for a mistrial will be disturbed only under the most extraordinary of circumstances ). 2 In order for the trial court s ruling to constitute such an abuse of discretion, the defendant must show prejudice. F.3d 809, 817 (4th Cir. 1995). there is a possibility clear that abuse the Reversal is required only if of jury s United States v. Dorsey, 45 discretion verdict was and a reasonable influenced by the error. United States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992). Because our review of the record clearly shows that Smith cannot show any prejudice from the untimely production of the second police report, his claim fails. II. Smith asserts that the court s requirement that a United States Marshal escort Smith to the bench during voir dire was prejudicial, especially in the absence of a finding that Smith was dangerous. Because Smith did not object below, the issue is reviewed for plain error. To establish plain error, the defendant must show that an error occurred, that the error was plain, substantial and that rights. the United error affected States v. the Olano, 507 defendant s U.S. 725, 732-34 (1993); United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009) (stating defendant bears burden of establishing each of the plain error requirements). A court s decision with regard to a security measure is subject to limited review for 3 abuse of discretion. See United States v. Samuel, 431 F.2d 610, 615 (4th Cir. 1970). Here, the court s requirement was apparently standard practice. Moreover, the court offered Smith an accommodation, whereby he could still participate in voir dire while remaining seated at counsel table. Smith voluntarily chose to approach the bench, ostensibly so that the jurors could view him at close range, knowing that a Marshal would escort him. Especially given that Smith had a lengthy criminal record and was in custody on a firearm charge, requirement, we even dangerousness. find in no the error absence in of the an district explicit court s finding of Further, even if the court s decision was error, due to the overwhelming evidence against Smith, he cannot show that the error affected his substantial rights. Accordingly, this claim is without merit. III. Smith manufactured Maryland was asserts in a that different insufficient evidence state to our precedent holds that and establish element of the charge against him. such that the then the firearm was transported interstate to nexus However, as Smith concedes, evidence is sufficient. See United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001); United States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997). 4 IV. Smith raises several conclusory challenges to the predicate offenses used to establish his Armed Career Criminal status. A violates defendant 18 is U.S.C. 922(g)(1) § an armed career (2006) criminal and has when three prior convictions for violent felonies or serious drug offenses. U.S.C. § 924(e)(1) (2006). in the presentence he 18 Smith s predicate convictions listed report ( PSR ) are as follows: (1) a conviction for Conspiracy to Commit Robbery with Deadly Weapon, (2) a conviction for Second Degree Assault, and (3) two convictions for Manufacture, Distribution, or Dispensation of a Controlled Dangerous Substance. Smith first asserts that the two prior drug felonies should not have consolidated. been counted However, it separately undisputed is because that they the were offenses occurred on different dates and were separated by an intervening arrest. See U.S. Sentencing Guidelines Manual § 4A1.2 comment. (n.3) (2007) (prior sentences are not related if offenses were separated by intervening arrest). indication that sentencing, and Smith s Smith Further, the PSR provides no convictions provides no were evidence consolidated in this for regard. Absent formal consolidation, a single sentencing proceeding and concurrent sentences do not make 5 convictions related for criminal history purposes. United States v. Allen, 50 F.3d 294, 296-98 (4th Cir. 1995). Next, Smith asserts that, because the two drug offenses involved small amounts of drugs and money, they should not have been considered serious drug offenses as defined by the Armed Career Criminal Act ( ACCA ). under the ACCA is an offense A serious drug offense under manufacturing, distributing, or manufacture distribute, controlled or a State possessing law, involving with substance intent . . . to for which a maximum term of imprisonment of ten years or more is prescribed by law. undisputed that 18 U.S.C. § 924(e)(2)(A)(ii) (2006). Smith s predicate drug offenses It is satisfy this definition; thus, the quantity of drugs or currency involved in each offense is irrelevant. Finally, Smith asserts that his misdemeanor assault was not a violent felony because it resulted in a suspended sentence. a Smith is incorrect. suspended probation. sentence, Smith The PSR shows that, rather than was sentenced to a year of Further, the relevant inquiry under the ACCA is the maximum penalty to which the defendant was subject. Because it is undisputed that Smith faced a maximum ten-year sentence on the assault charge, it was properly characterized as a violent felony. See United States v. Thomas, 2 F.3d 79, 81 (4th Cir. 1993). 6 V. Smith contends that the statutory mandatory minimum was cruel and unusual punishment given that he had never been given drug treatment significantly argument is and shorter. not that his However, legally previous Smith cognizable. sentences recognizes The Supreme were that his Court has never held that a sentence to a specific term of years, even if it might turn out to be more than the reasonable life expectancy of the United defendant, States v. constitutes Khan, 461 cruel F.3d and 477, unusual 495 (4th punishment. Cir. 2006). Though [s]evere, mandatory penalties may be cruel, . . . they are not unusual in the constitutional sense. Harmelin v. Michigan, 501 U.S. 957, 994 (1991). Based on the foregoing, we affirm Smith s conviction and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7
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