US v. Gary Smith, No. 11-4465 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4465 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY CHARLES SMITH, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Thomas D. Schroeder, District Judge. (1:09-cr-00371-TDS-1; 1:10-cr-00302TDS-1) Submitted: January 31, 2012 Decided: February 9, 2012 Before GREGORY, KEENAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. George E. Crump, III, Rockingham, North Carolina, for Appellant. Ripley Rand, United States Attorney, Paul A. Weinman, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gary Charles Smith appeals his conviction for access device fraud and one of his convictions for aggravated identity theft, and the 222-month sentence imposed by the district court following guilty pleas violation of U.S.C. aggravated 18 identity to three § counts 1344(1) theft in of (2006), violation bank six of fraud in counts of 18 U.S.C. § 1028A(a)(1) (2006), money laundering in violation of 18 U.S.C. § 1956(a)(1) U.S.C. (2006), § 1029(a)(2) access device (2006), and fraud in social violation security violation of 42 U.S.C. § 408(a)(6) (2006). of fraud 18 in On appeal, Smith contends that the district court erred by not committing him to a suitable facility for mental health treatment in lieu of sentencing him to imprisonment, pursuant to 18 U.S.C. § 4244(d) (2006). Smith also asserts several challenges to his sentence and two of his convictions. We affirm. Under 18 U.S.C. § 4244(d), a defendant with a mental disease or committed defect for incarceration. may receive treatment a prior provisional to his final sentence and sentencing be and Commitment under § 4244(d) occurs if, after a hearing on the defendant s current mental condition, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect and that he should, in lieu of being sentenced to imprisonment, be committed 2 to a suitable § 4244(d). facility for care or treatment. 18 U.S.C. In making this determination, the district court is required to find both a mental disorder and that the defendant should be hospitalized in lieu of imprisonment. States v. Buker, 902 F.2d 769, 770 (9th Cir. 1990). United A district court s determination as to a defendant s mental condition is a finding of fact that we review for clear error. States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990). for abuse of discretion a district court s United We review finding that a defendant should not be committed to a mental health facility in lieu of imprisonment. See United States v. General, 278 F.3d 389, 397 (4th Cir. 2002) (reviewing for abuse of discretion a district court s determination concerning a defendant s competency to be sentenced under 18 U.S.C. § 4244). Having district court assuming Smith important reviewed did not record, abuse suffered governmental the its from a interests we conclude discretion mental would in disease not be that ruling or the that, defect, served by his commitment under the statute. See United States v. Jensen, 639 F.3d 2011). 802, 805-06 (8th Cir. Therefore, this claim entitles Smith to no relief. Next, sentence. Smith asserts several challenges to his We review a sentence for reasonableness, using an abuse of discretion standard of review. 3 Gall v. United States, 552 U.S. 38, 46, 51 (2007). requires us to ensure that the significant procedural error. 155, 161 (4th Cir. 2008). calculating the Guidelines § 3553(a) factors. (4th Cir. 2009). The first step in this review district court committed no United States v. Evans, 526 F.3d Procedural errors include improperly range or failing to consider the United States v. Carter, 564 F.3d 325, 328 In determining whether a district court has properly applied a particular Guidelines provision, we review its factual findings for clear error and its legal conclusions de novo. United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). Smith first challenges the district court s imposition of a two-level Sentencing increase Guidelines in Manual his offense ( USSG ) level under § 2S1.1(b)(3) U.S. (2010), based on its finding that he was engaged in sophisticated money laundering. Under USSG § 2S1.1(b)(3), a two-level enhancement in the defendant s offense level is warranted if the defendant is convicted of violating 18 U.S.C. § involved sophisticated money laundering. § 2S1.1 intricate defines sophisticated offense conduct 1956 the offense The commentary to USSG laundering pertaining and to as the complex or execution or concealment of the 18 U.S.C. § 1956 offense, that typically involves the use of fictitious entities, shell corporations, or layering of transactions. USSG § 2S1.1, cmt. n.5(A). 4 After reviewing the record, we conclude that the district court did not err in finding that Smith was engaged in sophisticated money laundering, warranting the two-level increase. Smith next contends that the district court erred in imposing the two-level vulnerable victim enhancement under USSG § 3A1.1(b)(1), because there was no evidence to show that he actually knew that his unusually vulnerable. defendant knew victims, offense was a or The should vulnerable incarcerated increase have is known victim. inmates, warranted that USSG the § were [i]f victim of 3A1.1(b)(1). the the In making this determination, the district court must find that a victim was defendant unusually knew or vulnerable, should have and known assess of such whether the vulnerability. United States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010). After reviewing the record, we conclude that the district court did not err in imposing this enhancement. Next, Smith challenges the district court s imposition of six consecutive twenty-four-month sentences for his multiple § 1028A convictions. Smith argues that his underlying fraud offenses were grouped under USSG § 3D1.2, and the district court procedurally erred imposing consecutive six by failing to sentences explain for his its reasons multiple § for 1028A convictions when the Guidelines recommended that these sentence run concurrently. 5 Under 18 U.S.C. § 1028A, if a defendant wrongfully uses the identity of another person during and in relation to a bank or social security fraud, a sentencing court is required to impose a twenty-four-month sentence consecutive to the sentence imposed for the underlying fraud. (b)(2). In cases where a See 18 U.S.C. § 1028A(a)(1), defendant has been convicted of multiple counts under 18 U.S.C. § 1028A(a)(1), a court, in its discretion, can run each of the twenty-four-month concurrently with one another, in whole or in part. § 1028A(b)(4). consecutive or In exercising concurrent its sentences discretion for multiple sentences 18 U.S.C. to impose convictions under § 1028A, the court must consider a non-exhaustive list of factors that includes the nature and gravity of the underlying offenses, whether those offenses are groupable under USSG § 3D1.2, and whether the purposes of sentencing set forth in 18 U.S.C. § concurrent 3553(a)(2) sentences. are better See USSG achieved § 5G1.2 with cmt. consecutive n.2(B). or The sentencing court must adequately explain its decision to impose consecutive sentences pursuant to § 1028A. See United States v. Dvorak, 617 F.3d 1017, 1029 (8th Cir. 2010). After reviewing the record, we find that the district court properly noted that Smith s underlying fraud offenses were grouped under USSG § 3D1.2, but in a proper exercise of its discretion, found that the purposes of sentencing set forth in 6 18 U.S.C. § 3553(a)(2) consecutive sentences. were We better conclude achieved that the by imposing district court thoroughly considered those factors in making its determination, and the resulting sentence is not substantively unreasonable. Smith claims that the district court plainly erred in failing to dismiss, on its own motion, one of the counts of access device fraud and one count of aggravated identity theft to which he sentencing pled guilty showed that elements of the crimes. because the the Government evidence could offered at prove the not We note that, in making this argument, Smith does not challenge the voluntariness of his guilty plea. When a defendant pleads guilty, he waives all nonjurisdictional defects entry of the plea. in the proceedings conducted prior United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010) (internal quotation marks omitted). that because to Smith s guilty plea to the crimes We find was both counseled and voluntary, he cannot now challenge his conviction based on his contention that the evidence at sentencing failed to prove the elements of those crimes. Thus, we conclude that Smith is not entitled to relief. Accordingly, we affirm the district court s judgment. We dispense with oral argument 7 because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 8

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