US v. Jason Smith, No. 11-4167 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4167 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON SMITH, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:10-cr-00007-jpj-pms-1) Submitted: June 30, 2011 Decided: July 6, 2011 Before WILKINSON, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson, Assistant Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, Abingdon, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Debbie H. Stevens, Special Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jason Smith pled guilty to possession of a prohibited weapon in prison, in violation of 18 U.S.C. ยง 1791(a)(2) (2006). The district court sentenced him to forty-two months imprisonment, twelve months above the advisory Guidelines range. On appeal, Smith asserts that his sentence is unreasonable because it is longer than necessary to achieve the goals of sentencing and the district court s explanation did not justify the extent of the variance. This applying States, an court abuse 552 U.S. of 38, We affirm. reviews a sentence for discretion see Gall standard. 51 (2007); also Llamas, 599 F.3d 381, 387 (4th Cir. 2010). reasonableness, United v. United States v. This review requires appellate consideration of both the procedural and substantive reasonableness of a sentence. Gall, 552 U.S. at 51. Smith does not challenge the procedural reasonableness of his sentence. In assessing we tak[e] the into including range. the substantive account extent the of reasonableness totality any of variance of the the from sentence, circumstances, the Guidelines United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at 51). Although no presumption of reasonableness attends a district court s variance sentence, our review still is through the deferential lens of abuse of discretion. Gall, 552 U.S. at 50-51. 2 Smith s conviction followed an apparently unprovoked assault on another inmate using a padlock attached to a belt, which resulted in the victim suffering a fractured skull and a subdural hematoma. The district court assumed, as Smith alleged, that the victim had raped him several months before the assault. The court, however, did not credit Smith s testimony that, immediately before the attack, the victim was armed and an attack was imminent. The court further observed that Smith had other options besides self-help and that his desire to avoid a reputation for complaining eschewing these options. to prison Smith s staff history did of not justify misconduct in prison, coupled with the violent nature of the attack, led the court to vary upwards. We conclude that, under the totality of the circumstances, district the court s explanation justified the extent of the variance and that the court did not abuse its discretion in imposing a forty-two-month sentence. Accordingly, we affirm the district court s judgment. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3
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