US v. Raphel Smith, No. 12-5038 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-5038 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RAPHEL SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, Senior District Judge. (7:09-cr-00054-H-3) Submitted: September 24, 2013 Before WYNN and Circuit Judge. FLOYD, Circuit Decided: Judges, and October 7, 2013 HAMILTON, Senior Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: This case resentencing. returns Raphel Smith to was us following convicted, remand following a for jury trial, of conspiracy to distribute and possess with intent to distribute fifty or more grams of cocaine base ( Count One ), in violation of 21 U.S.C. § 846 (2006); distribution of more than five grams of cocaine base and a quantity of marijuana and aiding and abetting the same ( Count Six ), and distribution of a quantity of cocaine base and aiding and abetting the same ( Count Fourteen ), both in violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2 (2006); and possession of a firearm in furtherance of a drug trafficking offense ( Count Fifteen ), in violation court of 18 sentenced U.S.C. Smith § 924(c)(1)(A) to concurrent (2006). terms The of district 235 months imprisonment on Counts One, Six, and Fourteen, and a consecutive sentence of 60 months on Count Fifteen. On appeal, we affirmed Smith s convictions, but we concluded that the district court committed procedural sentencing error in imposing a Guidelines enhancement for managerial role in the offense. We therefore vacated Smith s sentence and remanded for resentencing. United States v. Smith, 494 F. App x 319, 322-23 (4th Cir. 2012), cert. denied, 133 S. Ct. 961 (2013). On remand, the district court sentenced Smith to concurrent terms of 168 months imprisonment on Counts One, Six, 2 and Fourteen, and a consecutive imprisonment on Count Fifteen. convictions and again procedural find the sentence sentence of 60 months Smith appeals, challenging his imposed sentencing on remand. error, we Because affirm in we part, vacate in part, and remand for resentencing. In his appellate brief, Smith argues that the district court erred in denying his motion for judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, based on the sufficiency of the evidence to support each of his counts of conviction. He also challenges the district court s drug weight calculation under the Guidelines. We considered, and rejected, both of these arguments in Smith s first appeal. See Smith, 494 F. App x at 321-22. Thus, these arguments fall within the scope of the law of the case doctrine. See L.J. v. Wilbon, 633 F.3d 297, 308 (4th Cir. 2011) (explaining doctrine). While a district court is permitted to deviate from the law of the case in limited, exceptional circumstances, United States v. Aramony, 166 exceptions), permit F.3d Smith 655, 661 identifies reconsideration of (4th no these Cir. such issues 1999) exception in this (describing that appeal. would We therefore conclude that these arguments are foreclosed by our prior opinion. Smith also challenges the procedural and substantive reasonableness of his sentence on remand. 3 We review a sentence for reasonableness, applying a deferential abuse-of-discretion standard. must Gall v. United States, 552 U.S. 38, 46 (2007). first ensure that the district court committed We no significant procedural error, including improper calculation of the Guidelines range, insufficient consideration of the 18 U.S.C. § 3553(a) (2006) factors, and inadequate explanation of the sentence States v. imposed. Lynn, 592 Gall, F.3d 552 572, U.S. 575 at (4th 51; see Cir. United 2010). In announcing a sentence, the district court is not required to robotically tick through particularly when imposing United States v. Powell, § 3553(a) s a 650 every subsection, within-Guidelines F.3d 388, 395 sentence. (4th Cir. 2011) (internal quotation marks omitted). However, the court must conduct an justifying imposed and individualized rejection of sentence based on § 3553. quotation marks omitted). assessment arguments for a the higher sentence or lower Lynn, 592 F.3d at 584 (internal Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence than that set forth in the advisory Guidelines, a district judge should address the party s rejected those arguments. arguments and explain why he has United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks omitted). The district demonstrate court that it must provide considered 4 sufficient the parties explanation to arguments and ha[d] a reasoned decisionmaking Rita v. for authority. United explanation basis [its] Lynn, States, to 592 F.3d U.S. 551 required is exercising 338, 356 promote the at own 576 legal (quoting (2007)). perception Such of sentencing and to permit meaningful appellate review. fair Gall, 552 U.S. at 50. Smith asserts that on resentencing, the court erred in failing to provide a sufficient explanation for its denial of his request for a downward variance. its sentence, reasons for the court denying provided the We agree. scant requested In announcing explanation variance within-Guidelines sentence it ultimately selected. provided only a brief response to Smith s its for and of the The court argument that his limited criminal history warranted a downward variance sentence, and it did not specifically address Smith s assertion that his criminal history specifically history score address and relationships rehabilitation. was exaggerated. counsel s characteristics, with his Nor arguments the court regarding Smith s Smith s loving including family did and post-incarceration The court did not refer at any point to the § 3553(a) factors or indicate its calculus under those factors. Thus, we conclude individualized the court assessment failed of Smith s 5 to conduct case or an adequate to provide sufficient explanation for its decision to reject Smith s request for a variance. Procedural sentencing error, including failure to adequately explain the chosen sentence, is subject to review for harmlessness. Lynn, 592 F.3d at 576. Under that standard, the government may avoid reversal only if it demonstrates that the error did influence not on have the a substantial result, such and that injurious we can effect say with or fair assurance that the district court s explicit consideration of the defendant s arguments would not have affected the sentence imposed. United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (internal quotation marks and alterations omitted). Remand is appropriate when the absence of explanation prevents us from sentence determin[ing] it imposed why the appropriate district or court deemed produce[s] a the record insufficient to permit even . . . routine review for substantive reasonableness. Lynn, 592 F.3d at 582 (internal quotation marks omitted). We conclude that the Government has not met its burden to establish harmless error. While the record clearly establishes that the court considered at least some of Smith s arguments for a variant sentence, and the arguments Smith raised were not particularly compelling, we cannot say with fair assurance that the court would not have reached a different 6 result had it more precisely addressed these arguments on the record. 1 Perhaps more importantly in this case, the transcript of the resentencing hearing is simply insufficient to permit meaningful appellate review of the substantive reasonableness of the sentence or to ensure that the court conducted the required individualized assessment of Smith s case. Because we conclude there exists significant procedural error in Smith s sentence, we have no occasion to address its substantive reasonableness. 2 See United States v. Horton, 693 F.3d 463, 472 (4th Cir. 2012). Accordingly, we affirm Smith s convictions, vacate Smith s sentence, and remand 1 We recognize that the district court more clearly expressed its reluctance to vary downward from the Guidelines range at the original sentencing hearing when addressing arguments similar to those raised by Smith at resentencing. Even assuming these prior statements could be used to support the sentence imposed on remand, they do not fully address the nonfrivolous arguments raised by Smith during the resentencing hearing. Moreover, the court s remarks at resentencing provide no basis to infer that the court intended to adopt or incorporate its prior rationale when refusing to vary downward in resentencing Smith. 2 Insofar as Smith argues that the district court abused its discretion in refusing to depart downward based on his argument that his criminal history score was overstated, this issue is not reviewable on appeal, as the record provides no basis to question that the court properly understood its authority to depart. United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). Because we do not reach the substantive reasonableness of the sentence, however, we again decline to express any view on the propriety of the district court s rejection of Smith s arguments for a downward variance. 7 for resentencing to permit the court to provide an individualized assessment and more thorough explanation of the sentence imposed. facts and materials legal before We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 8

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