US v. Cordell Smith, No. 09-4881 (4th Cir. 2011)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4881 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CORDELL LESTER SMITH, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:06-cr-00067-FDW-DCK-1) Submitted: February 25, 2011 Decided: March 21, 2011 Before NIEMEYER, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Leslie Carter Rawls, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial, Cordell Lester Smith was convicted of possession with intent to distribute a quantity of crack cocaine, in violation of 21 U.S.C.A. § 841(a), (b) (West 1999 & Supp. 2010) (Count One), using and carrying one or more firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2006) (Count Two), and possession of one or more firearms by a convicted felon, in violation of 18 U.S.C. § 922(g) (2006) (Count Three). sentenced Smith imprisonment: in November 2007 to a total of The court 197 months 137 months on Count One, a concurrent 120 months on Count Three, and a consecutive sixty months on Count Two. On appeal, finding that the district court improperly presumed that a sentence within the guidelines range would be reasonable, this court vacated his sentence and remanded the case to the district court for resentencing. See United States v. Smith, 566 F.3d 410 (4th Cir. 2009), cert. denied, 130 S. Ct. 1100 (2010). At resentencing, as at the original sentencing, the district court adopted the guidelines calculations established in the presentence report ( PSR ). Counts One and Three were grouped pursuant to U.S. Sentencing Guidelines Manual § 3D1.2(c) (2007). The guideline for Count One, possession with intent to distribute cocaine base, USSG § 2D1.1, produced a higher offense level, twenty-eight; consequently, 2 under USSG § 3D1.3(a), Smith s base offense level for Counts One and Three was twentyeight. With an offense level of twenty-eight and a criminal history category of IV, Smith s guidelines range on Counts One and Three was 110 to 137 months imprisonment. A (sentencing table). USSG ch. 5, pt. However, because the statutory maximum sentence for Count Three under 18 U.S.C. § 924(a)(2) (2006) was ten years, which was less than the top of the guidelines range, pursuant Count to USSG Three § 5G1.1(c)(1), became to pursuant Additionally, 110 to Smith s 120 USSG guidelines months § 2K2.4, range on imprisonment. Smith s guidelines sentence on Count Two was five years imprisonment. Smith sought a downward variance sentence based on the disparity between cocaine. After sentencing factors below-guidelines sentences analyzing for and the powder 18 the has filed a § Smith s district Smith to 197 months imprisonment. Counsel U.S.C. considering sentence, cocaine and crack 3553(a) (2006) arguments court again for a sentenced Smith timely appealed. brief pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for appeal sentence. but the reasonableness of Smith s Smith filed a pro se supplemental brief asserting additional claims. This applying questioning an For the reasons that follow, we affirm. court abuse of reviews a discretion 3 sentence for standard. reasonableness, Gall v. United States, 552 U.S. 38, 51 (2007); see also Llamas, 599 F.3d 381, 387 (4th Cir. 2010). United States v. This review requires appellate consideration of both the procedural and substantive Gall, 552 U.S. at 51. reasonableness of a sentence. In determining procedural reasonableness, we consider whether the district court properly calculated the defendant s advisory guidelines analyzed any range, considered arguments the by presented § 3553(a) the of whether the district within-Guidelines court sentence, imposes it must an place parties, Id. sufficiently explained the selected sentence. and Regardless above, on factors, or record the below, an individualized assessment based on the particular facts of the case before it. United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks omitted). After reviewing the record, we conclude that the district court properly calculated Smith s advisory guidelines range, considered the § 3553(a) factors, analyzed the arguments presented by the parties, and gave a thorough explanation of the sentence it selected. is procedurally procedural totality of reasonable. error, reasonableness We therefore hold that Smith s sentence of the the the Where court next sentence, circumstances, is no significant assesses the substantive taking including variance from the Guidelines range. 4 there into the account extent of the any United States v. Morace, 594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307 (2010). Smith s counsel questions whether the district court clearly erred by finding that Smith probably flushed drugs down the toilet and therefore probably possessed more than the 49.59 grams of crack attributable to him in the PSR. found that a preponderance Smith probably was of involved the with evidence more The court established than fifty that grams of crack because, when the officers executed the search warrant and entered his residence, they heard a toilet flush and encountered Smith emerging from the bathroom. Inside the bathroom, the officers discovered a glass plate with a small rock of crack, two sets of scales, and a razor blade. Although the court determined Smith s offense level, and hence his guidelines range, solely upon the 49.59 grams seized from his bedroom, the issue of drugs flushed down the toilet arose in the context of Smith s request for a variance. Specifically, the court rejected counsel s assertion that Smith was merely a low level dealer when arguing for the variance, based in part on its conclusion that Smith had probably flushed additional drugs down the toilet and therefore was involved with more than 49.59 grams of crack. Emphasizing Smith s residence that a revealed search no 5 of the contraband, sewer lines Smith s from counsel suggests that the court clearly erred by probably flushed drugs down the toilet. finding that We disagree. Smith Given that there was crack belonging to Smith elsewhere in the house, a small quantity of crack in the bathroom along with indicia of drug dealing, and the fact that Smith flushed the toilet and emerged from the bathroom as the officers entered the residence, we conclude that the court did not clearly err by finding that it was more likely than not that Smith flushed drugs down the toilet and therefore was probably involved with more than the 49.59 grams for which he was held accountable. Cf. United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (holding that preponderance of the evidence supported findings of drug quantity for sentencing purposes where it was more likely than not that the defendant was responsible for at least the drug quantity attributed to him ). Next, Smith s counsel questions whether the court failed to adequately consider the disparity between the powder cocaine and crack cocaine guidelines when sentencing Smith to a within-guidelines sentence. The court addressed the issue at length with counsel, noting that Smith obtained the benefit of the 2007 amendments to the crack guidelines and stating that, although the court had the discretion sentence, it was not obligated to do so. to impose a lesser The court found that Smith was more than a low level dealer based on the quantity of 6 drugs seized and the likelihood that he had flushed more drugs down the toilet. The court concluded that a sentence within the guidelines range, rather than a downwardly variant sentence, was warranted because Smith utilized guns in his drug activities, creating a risk of violence. In Kimbrough v. United States, 552 U.S. 85 (2007), the Supreme Court established that a district court does not abuse its discretion by varying from the sentencing guidelines if it has a policy disagreement concerning the disparity between crack and powder cocaine sentences. See Spears v. United States, 555 U.S. 261, ___, 129 S. Ct. 840, 843 (2009). However, lower courts have held that Kimbrough does not require a court to impose a sentence below the guidelines range if it does not have a policy disagreement with the guidelines. United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009), cert. denied, 130 S. Ct. 2362 (2010); United States v. Caldwell, 585 F.3d 1347, 1355 (10th Cir. 2009), cert. denied, 131 S. Ct. 209 (2010); United States. v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008). Here, Smith received the benefit of the 2007 amendments to the sentencing guidelines designed to address the powder cocaine/ crack cocaine sentencing disparity. By emphasizing that its concern drugs was with the combination of with firearms in Smith s case and not with any continuing disparity between the sentences for crack and powder cocaine offenses, we conclude 7 that the district court implied that it did not have a policy disagreement with the guidelines. Because the district court was not obligated to vary from that guidelines range under these circumstances, the court s decision not to downwardly vary did not render Smith s sentence substantively unreasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Smith s sentence. amended pro se supplemental brief Smith s motion to file an is denied. This court requires that counsel inform Smith, in writing, of the right to petition the Supreme Court of the United States for further review. If Smith requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this and materials legal before for leave to withdraw from Counsel s motion must state that a copy thereof was served on Smith. facts court We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED We conclude after our thorough review of Smith s pro se supplemental brief that he is not entitled to relief on any of his pro se claims. 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.