US v. Dacious Smith, No. 09-4079 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4079 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DACIOUS LAMONT SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:08-cr-00045-F-1) Submitted: December 17, 2009 Decided: December 28, 2009 Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, 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 Unpublished opinions are not binding precedent in this circuit.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: Dacious Lamont Smith pled guilty, without a plea agreement, to conspiracy to distribute and possess with intent to distribute at least five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), using and carrying a firearm during and in relation to, and possessing the firearm in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006), and possessing a firearm after having been convicted of a crime punishable by more than one year of imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006). appeal, he argues that the district court s imposition of On a sentence of 131 months of imprisonment was not reasonable, and that his sentence must be vacated and remanded for resentencing pursuant to the Supreme Court s decisions in Nelson v. United States, 129 S. Ct. 890 (2009), and Spears v. United States, 129 S. Ct. 840 (2009). We affirm. Smith does not assert any specific error committed by the district court in selecting his sentence, but argues that the factors in 18 U.S.C. § 3553(a) (2006) supported a sentence at the mandatory minimum term of 120 months of imprisonment. We review of a sentence discretion standard. (2007). the for reasonableness under an abuse Gall v. United States, 552 U.S. 38, 51 This review requires appellate consideration of both procedural and substantive 2 reasonableness of a sentence. Id. After determining whether the district court properly calculated the defendant s advisory guidelines range, this court must then consider whether the district court considered the factors in 18 U.S.C. § 3553(a) (2006), analyzed the arguments presented by the selected sentence. 330 (4th Cir. parties, and sufficiently explained the Id.; United States v. Carter, 564 F.3d 325, 2009). Finally, reasonableness of the sentence. we review the substantive United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Our review of the record leads us to conclude that the district court committed no procedural error in this case. Turning to the substantive reasonableness of the sentence, this court presumes calculated that guidelines a sentence range is imposed within reasonable. the Rita properly v. United States, 551 U.S. 338, 347 (2007); United States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009). reasonableness to Smith s Applying the presumption of within-guidelines sentence, which Smith fails to rebut on appeal, we find that the district court did not abuse its discretion in imposing a 131-month sentence. Thus, the sentence is reasonable. At the time Smith was sentenced, the Supreme Court had decided in Kimbrough v. United States, 552 U.S. 85 (2007), that courts are permitted to vary downward from a sentencing range based on the Sentencing Guidelines 100-to-1 cocaine base to 3 cocaine powder sentencing ratio if the resulting sentence under the Guidelines would be greater than necessary to achieve the objectives set forth in § 3553(a). Id. at 110-11. The decision in Spears expanded upon Kimbrough s holding by clarifying that the district courts categorically from are the entitled crack-cocaine to Guidelines policy disagreement with those Guidelines. at 843-44. reject and based vary on a Spears, 129 S. Ct. Nelson did not address Kimbrough, but held that the presumption of reasonableness accorded to a within-Guidelines sentence is an appellate presumption that may not be considered by the district court in selecting a sentence. Ct. at 892. Nelson, 129 S. In this case, there is no indication that the district court did not realize its discretion to select a lower sentence based on the crack-powder disparity, and the district court did not reasonable. presume the Guidelines sentencing range to be Thus, we conclude that this argument is without merit. We therefore affirm Smith s 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 4
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