US v. Robert Smith

Filing 920091218

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-4928

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT JARED SMITH, a/k/a J Dog, Defendant - Appellant.

On Remand from the Supreme Court of the United States. (S. Ct. No. 08-8197)

Submitted:

November 30, 2009

Decided:

December 18, 2009

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Barron Michael Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West Virginia, for Appellant. Monica Kaminski Schwartz, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: In 2000, a jury convicted Robert Jared Smith of

conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846 (2006), and aiding and abetting possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2 (2006). district court sentenced Smith to life in prison on The the

conspiracy count and a concurrent twenty-year prison term on the possession affirmed with intent to distribute but count. his On appeal, we and

Smith's

convictions,

vacated

sentence

remanded for resentencing on the ground that the district court abused its discretion by applying a leadership role enhancement pursuant to U.S. Sentencing Guidelines Manual § 3B1.1 (1999). United States v. Sayles, 296 F.3d 219, 227 (4th Cir. 2002). Following Smith's objections him a to hearing, the the the district role court sustained and USSG

leadership four-level

enhancement under

resentenced § 3B1.1.

without

increase

Thus, his offense level was reduced from 42 to 38.

Based on an offense level of 38 and criminal history category IV, Smith's guidelines range on the conspiracy count was 324 to 405 months in prison. the conspiracy count The court sentenced him to 405 months on and to a concurrent 240 months on the

possession with intent to distribute count.

Smith appealed, and

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we affirmed.

United States v. Smith, 98 F. App'x 962 (4th Cir.

2004) (No. 02-4928). Smith subsequently filed a 28 U.S.C.A. § 2255 (West Supp. 2009) motion, which the district court denied. One of the

issues that arose during Smith's § 2255 proceedings concerned appellate counsel's failure to file a petition for writ of

certiorari as requested in United States v. Smith, 98 F. App'x 962 (4th Cir. 2004). We construed Smith's § 2255 motion as a

motion to recall the mandate in Smith, 98 F. App'x 962, recalled the mandate, and reentered the judgment to permit Smith to file a timely petition for certiorari to the United States Supreme Court. United States v. Smith, 321 F. App'x 229 (4th Cir. 2008) The Supreme Court subsequently granted Smith's certiorari, vacated this court's judgment, and

(No. 07-6358). petition for

remanded his case for further proceedings in light of United States v. Booker, 543 U.S. 220 (2005). 129 S. Ct. 2763 (2009). In light of the vast changes in the legal landscape that have occurred in the seven years since the district court resentenced Smith, we vacate Smith's sentence and remand for resentencing in light of Booker and its progeny. We dispense Smith v. United States,

with oral argument because the facts and legal contentions are

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adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process.

VACATED AND REMANDED

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