US v. Marcil Smith, No. 09-5076 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5076 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARCIL ANTONIO SMITH, a/k/a Tony, a/k/a Tony Smith, a/k/a Fat Cat, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:95-cr-00081-F-1) Submitted: October 29, 2010 Decided: November 19, 2010 Before WILKINSON, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, 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 Unpublished opinions are not binding precedent in this circuit.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: Marcil Antonio Smith appeals the thirty-six-month sentence imposed by the district court upon revocation of his supervised release. We previously vacated a sixty-month revocation sentence and remanded for resentencing because the district court upwardly departed from the five-to-eleven month advisory range based on a finding that Smith had twice previously been accorded leniency during revocation proceedings after the court found that Smith had engaged in criminal conduct including the use of marijuana. Because the district court had not found that Smith used marijuana and had found only one prior violation conceded of the error, States v. terms and Smith, we No. of his supervision, remanded 09-4246 for (4th the Government resentencing. Cir. July United 9, 2009) (unpublished order). On remand, the district court again upwardly departed from the advisory guideline range and explained its departure by reference to the leniency that it twice afforded Smith and that Smith continued to engage in criminal conduct. The court also stated that Smith continued to disregard the conditions of his supervision and that no amount or level of supervision [ ] could insure the safety of the community from the harms of this defendant. The district court explained that the only criminal conduct which for it found a 2 violation of supervision was Smith s driving after his license was revoked. However, the court also relied on the fact that Smith had been in and out of prison since age convictions for resisting 16, public a his conspiracy criminal to officer sell and history and the deliver leniency including cocaine allowed and when, [i]n 2007, Smith appeared before this court on two separate occasions for revocation hearings. On appeal from the thirty-six-month revocation sentence, Smith contends that the district court made the same error after erroneously violation remand as finding of that that his which the resulted court supervised had release in twice and the remand Smith found yet in afforded him leniency by continuing his supervision. We will affirm a sentence imposed after revocation of supervised maximum release and is if not it is plainly within the applicable unreasonable. United statutory States Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). only if we conclude that a sentence is v. However, procedurally or substantively unreasonable will we consider whether the sentence is plainly unreasonable. Id. at 439. During sentence the revocation within the advisory lesser departure. than the one proceeding, guideline Smith range, or requested a at a least Because Smith requested a sentence different imposed, any error 3 by the district court must result in a reversal unless the error is harmless. See United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). On remand, Smith s counsel repeatedly informed the district court that no violation was found during Smith s second revocation hearing in 2007. In providing its reasons for departing upward to thirty-six months, the district court stated that Smith was twice afforded leniency in revocation proceedings in 2007. However, the district court s overall findings in support of the upward departure differed after remand from those that resulted in the remand. Notably, in the prior ruling, the district court found that Smith had committed violations on two prior occasions, with one being for use of marijuana. Based on that finding and others, the district court departed upward to sixty months. Here, with slightly modified findings, but still stating that the court twice afforded Smith leniency, the court sentenced Smith to thirty-six months. In findings, light including of the Smith s totality of the district court s recidivism, his involvement with drugs, his lack of respect for authority, and the fact that he received a significant downward departure at his original sentence, and the district court s conclusion that no amount or level of supervision [ ] could insure the safety of the community from the harm of [Smith,] we conclude that any error by the court in stating that Smith was twice afforded leniency 4 did not affect the length of his sentence, and therefore was harmless. Further, we hold that the thirty-six-month sentence imposed upon Smith s revocation was not clearly unreasonable, especially when considered in light of the court s findings and the fact that Smith received a downward departure from the guideline range determined for his conviction on the underlying offense. See U.S. Sentencing Guidelines Manual ยง 7B1.4, p.s., comment. (n.4) ( When the original sentence was the result of a downward departure (e.g., as a reward for substantial assistance), . . . an upward departure may be warranted. ). Accordingly, we affirm the thirty-six-month sentence imposed by the district court. 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 5
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