US v. Frederick Smith, No. 09-4146 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4146 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FREDERICK ALANDO SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00137-FL-1) Submitted: March 22, 2010 Decided: April 9, 2010 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Andrea T. Stubbs, Assistant Federal Public Defenders, 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 Unpublished opinions are not binding precedent in this circuit.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: Frederick Alando Smith pled guilty to bank robbery, 21 U.S.C. § 2113(a) (2006), and was sentenced to ninety-five months in prison. Smith unreasonable. appeals, contending that his sentence was 20. See is We affirm. I Smith s base offense level Sentencing Guidelines Manual § 2B3.1(a) (2008). U.S. Two levels were added because the property of a financial institution was taken, see USSG § 2B3.1(b)(1), and three levels were subtracted for acceptance of responsibility, see USSG § 3E1.1. offense level was 19. placing him in Smith s total He had eleven criminal history points, criminal history category V. His advisory Guidelines range was 57-71 months. At sentencing, argument focused on the Government s motion for upward departure, in which the Government asked that Smith be sentenced observed Government as that a de facto many of career Smith s offender. offenses The were too remote to have been assigned criminal history points or were not counted for other reasons. Those crimes included common law robbery, assault with a deadly weapon inflicting serious injury, misdemeanor counts), assault, passing communicating worthless threats, 2 and checks (over possession of twenty drug paraphernalia. category V The Government contended that criminal history failed to adequately reflect the seriousness of Smith s past criminal conduct or the likelihood that he would commit future crimes. Smith, through counsel, replied that a sentence advisory within the Guidelines range would be sufficient to satisfy sentencing purposes. After hearing from counsel and inviting Smith to speak, the district court concluded that a sentence outside the advisory Guidelines range was appropriate, and sentenced Smith to ninety-five months in prison. In pronouncing sentence, the court specifically mentioned many of the 18 U.S.C. § 3553(a) (2006) sentencing factors, including: the nature and circumstances of the offense; the need to protect the public from further crimes; the need to promote respect for the law; and the need commented included to deter especially engaging in further about criminal Smith s larceny over conduct. criminal a The court history, which twenty-four-year period. These factors, the court found, warranted a sentence above the advisory Guidelines range, but lower than the sentence advocated by the Government. The court added that it had considered imposing a sentence greater than ninety-five months. However, mitigating circumstances, including Smith s physical and mental health, dissuaded the court from sentence. 3 imposing a more severe The court commented that it could arrive at a ninetyfive-month sentence another way: by granting the Government s departure motion. methodology The court explained that, by following the set forth in the Guidelines, it would reach a Guidelines range of 77-96 months and sentence Smith to ninetyfive months in prison. II We review a sentence for reasonableness, applying an abuse-of-discretion standard. 38, 51 (2007); see also 742 (4th Cir.), cert. Gall v. United States, 552 U.S. United States v. Seay, 553 F.3d 732, denied, 130 S. Ct. 127 (2009). Our initial review is for significant procedural error, including failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range. We the sentence next Gall, 552 U.S. at 51. consider imposed. the Id. substantive At this reasonableness stage, we take of into account the totality of the circumstances, including the extent of any district variance court from the decides Guidelines to impose 4 range. a sentence Id. If the outside the Guidelines range, it must ensure that its justification supports the degree of the variance. 155, 161 (4th Cir.), United States v. Evans, 526 F.3d cert. denied, 129 S. Ct. 476 (2008) (quoting Gall, 552 U.S. at 51). Our review of the record convinces us that Smith s ninety-five-month substantively variant sentence reasonable. First, there procedural errors in the sentence: calculated Smith s advisory was procedurally were no and significant the district court properly Guidelines range; considered the § 3553(a) factors; and explained that it was varying from the Guidelines range because that range did not adequately account for the criminal nature and history, circumstances and the need to of the offense, protect the Smith s public from further financial crimes. Additionally, reasonable. The arguments supported with a Notably, and thoughtful the court the sentence district the court is considered twenty-four-month analysis of discussed relevant Smith s substantively the parties upward variance § 3553(a) factors. extensive history of larceny, the harm his crimes had caused, and his demonstrated lack of respect for the law. 5 III Smith contends that his sentence was the result of an upward departure under the Guidelines. See USSG § 4A1.3. He takes issue with the methodology used by the district court in calculating his departure sentence. The district court offered two separate rationales for imposing (1) the a sentence § 3553(a) above Smith s statutory advisory factors; and Guidelines (2) the range: Guidelines departure provisions. In Evans, we stated: [A]fter calculating the correct Guidelines range, if the district court determines that a sentence outside that range is appropriate, it may base its sentence on the Guidelines departure provisions or on other factors so long as it provides adequate justification for the deviation. . . . When . . . a district court offers two or more independent rationales for its deviation, an appellate court cannot hold the sentence unreasonable if the appellate court finds fault with just one of these rationales. Id. at variant 164-65. Under Evans, sentence--imposed because using the we have § 3553(a) found Smith s factors--to be procedurally and substantively reasonable, there is no need to address the reasonableness of the alternative rationale. 6 same sentence under the IV We accordingly affirm. 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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