United States v. Kevin Smith, No. 19-3114 (8th Cir. 2020)
Annotate this CaseCourt Description: [Per Curiam - Before Kelly, Wollman and Stras, Circuit Judges] Criminal case - Sentencing. Giving habitual offenders longer sentences based on their past crimes does not subject them to double jeopardy; it was reasonable for the district court to rely on defendant's career-offender status when it gave him a below-guidelines sentence; it was not an abuse of discretion for the district court to decline to vary to a greater extent than it did. [ July 28, 2020 ]
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-3114 ___________________________ United States of America Plaintiff - Appellee v. Kevin Ray Smith Defendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Des Moines ____________ Submitted: April 16, 2020 Filed: July 29, 2020 [Unpublished] ____________ Before KELLY, WOLLMAN, and STRAS, Circuit Judges. ____________ PER CURIAM. Kevin Ray Smith pleaded guilty to conspiring to distribute a mixture or substance containing methamphetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846. Based on two prior drug convictions, the district court1 1 The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa. concluded that he was a career offender. See U.S.S.G. § 4B1.1. On appeal, Smith claims that considering his prior convictions violated the Double Jeopardy Clause and gave rise to a substantively unreasonable sentence. We affirm. We make short work of Smith’s double-jeopardy argument. As we have long held, giving “habitual offenders” a longer sentence based on their past crimes “do[es] not subject [them] to a second conviction or punishment for [their] prior offenses.” United States v. Thomas, 895 F.2d 1198, 1201 (8th Cir. 1990); accord Witte v. United States, 515 U.S. 389, 400 (1995); see U.S. Const. amend. V, cl. 2. Rather, it is a permissible recidivism-based “aggravating factor” for their current offense. Thomas, 895 F.2d at 1201; see Witte, 515 U.S. at 400 (describing “the latest crime” as “an aggravated offense because a repetitive one” (citation omitted)). It was also reasonable for the district court to rely on Smith’s career-offender status when it gave him a below-Guidelines-range sentence of 160 months in prison. See United States v. Scott, 818 F.3d 424, 435–36 (8th Cir. 2016); see also United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (reviewing a substantive-reasonableness challenge for an abuse of discretion). Even if he believes that it was “unfair[]” to rely on his prior convictions, there was no error in doing so. See United States v. Barron, 557 F.3d 866, 870–71 (8th Cir. 2009). Nor was it an abuse of discretion for the court, after granting a substantial departure from the recommended range of 262 to 327 months in prison, see U.S.S.G. § 5K1.1, to decline to vary downward even further. Cf. United States v. Zauner, 688 F.3d 426, 429 (8th Cir. 2012) (stating that a district court rarely abuses its discretion when it varies downward, but not as far as the defendant would like). We accordingly affirm the judgment of the district court. ______________________________ -2-
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