US v. Desmond Smith, No. 09-4118 (4th Cir. 2011)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on December 9, 2009.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4118 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DESMOND JAMAR SMITH, Defendant Appellant. On Remand from the Supreme Court of the United States. (S. Ct. No. 09-9611) Submitted: September 8, 2011 Decided: September 27, 2011 Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, James E. Todd, Jr., Research and Writing Attorney, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Desmond Jamar Smith pled guilty without a plea agreement to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006), and was sentenced to 210 months in prison. timely appealed, Rodriquez, 553 judgment of asserting U.S. 377, conviction, that 389 under (2008) charging United (cautioning document or Smith States that plea v. when a colloquy do[es] not show that the defendant faced the possibility of a recidivist enhancement, the Government might be precluded from establishing triggering that the application conviction of a is a qualifying sentencing offense enhancement), the district court erred when it classified him as an armed career criminal under 4B1.4(b)(3)(B) U.S. Sentencing (2008), and the Guidelines Armed Manual Career ( USSG ) Criminal § Act ( ACCA ), 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2011), because it failed to consider his particular criminal history in determining the maximum punishment he faced under state law for the offenses underlying his ACCA classification. We affirmed the district court s judgment, rejecting, in relevant part, Smith s argument as contrary to United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (holding that in order to determine whether a conviction is for a crime punishable by a prison term exceeding one year . . . [the Court] 2 consider[s] the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history ). See United States v. Smith, 354 F. App x 830, 832 (4th Cir. 2009) (No. 09-4118) (unpublished). Smith filed a petition for writ of certiorari with the Supreme Court, and the Supreme Court vacated this court s order affirming the criminal judgment and remanded the case to this court for further consideration in light of Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2587 n.12 (2010) (stating that it held in Rodriquez that a recidivist finding could set the maximum term of imprisonment, but only when the finding record of conviction ) (emphasis added). is part of the In United States v. Simmons, ___ F.3d ___, 2011 WL 3607266, *3 (4th Cir. Aug. 17, 2011), we considered the question that Smith raises and concluded that a North Carolina offense may not be classified as a felony punishable by imprisonment for more than one year under the Controlled Substances Act based upon the maximum aggravated sentence that could be imposed upon a repeat offender if the individual defendant was not eligible for such a sentence. We therefore vacate Smith s sentence and remand the matter to the district court for resentencing under Simmons, but reinstate our previous Smith s order affirming remaining Smith s assignments of sentence. 3 conviction error and pertaining rejecting to his Smith did not assert in the district court that his armed because career they criminal were not predicate punishable greater than one year. convictions by a term were of improper imprisonment Accordingly, we review the appellate challenge to his armed career criminal classification for plain error. See United States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010). To establish plain error, Smith must demonstrate that (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. Olano, 507 U.S. 725, 732 (1993). See United States v. Even if Smith makes this showing, however, we may exercise our discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). See United States v. Smith has established plain error. First, although the Government asserts that North Carolina Class H felony convictions like Smith s prior state convictions generally carry a maximum possible term of thirty months imprisonment, Smith s prior state the record Government level and concedes the that lack of based on statutory aggravating or mitigating factors, Smith was subject to a state sentencing range of eight to ten months imprisonment for those convictions. See N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009). Thus, it was error for the district court to classify Smith as 4 an armed career criminal based on his prior state convictions for which he did not face more than one year in prison. See Simmons, 2011 WL 3607266 at *3. We plain. also For hold purposes that of the plain district error court s review, error [p]lain synonymous with clear or, equivalently, obvious. 507 U.S. at 734. was is Olano, An error is plain where the law at the time of trial was settled and clearly contrary to the law at the time of appeal. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)); accord United States v. David, 83 F.3d 638, 645 (4th Cir. 1996) (holding that an error is plain when an objection at trial would have been indefensible because of existing law, but a supervening settled law ). decision When prior Smith to appeal objected to reverses his that well- Guidelines range calculation in the district court, any objection based on the length of sentence he faced for his state crimes was foreclosed by Harp. Because Simmons has now overruled Harp, however, we find that the district court s error was plain. See Simmons, 2011 WL 3607266 at *3 ( [W]e now conclude that Harp no longer remains good law. ). The In fact, had error Smith also not affected been Smith s classified substantial as an armed rights. career criminal, his Guidelines range would have been lower than the 5 one adopted by the district court and if the district court were to sentence Smith to the top of his non-ACCA Guidelines range (as it did under the ACCA Guidelines range), Smith s sentence would be less than the 210-month sentence he received. See USSG ch. 5, pt. A. Because Smith received a longer sentence than he would have received were it not for his ACCA classification, we notice the district sentence and nonetheless court s remand reinstate sentencing for error resentencing our previous and under order vacate Smith s Simmons. * affirming We Smith s conviction and rejecting Smith s remaining assignments of error pertaining to his 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. VACATED AND REMANDED * We of course do not fault the Government or the district court for their reliance upon, and application of, unambiguous circuit authority at the time of Smith s sentencing. 6
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