US v. Terrence Smith

Filing 920090918

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5002

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TERRENCE SMITH, Defendant ­ Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:05-cr-00061-JFM-6)

Submitted:

September 9, 2009

Decided:

September 18, 2009

Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas J. Saunders, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, A. David Copperthite, Kwame J. Manley, Assistant United States Attorneys, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: We previously affirmed Terrence Smith's convictions

for several crimes related to the firebombing of Edna McAbier's home but vacated his 960-month sentence and remanded for

resentencing. United States v. Harris, 498 F.3d 278, 281 (4th Cir. 2007). to 960 On remand, the district court again sentenced Smith in prison. Smith now appeals, raising four

months

issues.

We affirm.

I According to Smith's presentence report (PSR), Counts One, Two, Three and Six (conspiracy to commit witness tampering, two counts of witness tampering, See and making firearms, Guidelines

respectively),

were

grouped.

U.S.

Sentencing

Manual § 3D1.2(b) (2007).

Because the object of the offense

would have constituted first degree murder, the cross-reference for assault with intent to commit murder was applied, for a base offense level of 33. See USSG §§ 2A2.1(a)(1), 2X1.1(a), 2K2.1.

There were no adjustments, and Smith's total offense level for these offenses was 33. His criminal history category was VI, and his advisory Guidelines range for the group was 235-293 months. With respect to Count Four (use of firearms in a crime of violence), Smith was statutorily subject to a mandatory

minimum consecutive term of thirty years because the firearm 2

used

was

a

destructive

device.

See (2006).

18

U.S.C. the

§§ 924(c)(1)(B)(ii),

924(c)(1)(D)(ii)

Under

applicable guideline, Smith's guideline sentence was the minimum term of imprisonment absent any Chapter Three or Four reductions or enhancements. USSG § 2K2.4(4)(b). Because he had a

conviction other than for the § 924(c) offense, and because he qualified as a career offender, USSG § 4B1.1(a), his advisory Guidelines range for this count was determined by adding the minimum consecutive penalty (30 years or 360 months) to the

minimum and maximum of the range (235-293 months) for the group above. As a result, the advisory Guidelines range for Counts

One, Two, Three, Four, and Six was 595-653 months. Smith was statutorily subject to a mandatory

consecutive minimum term of ten years for Count Five (using fire and explosives in a felony). See 18 U.S.C. § 844(h) (2006).

His guideline range was the term of imprisonment required by statute, less any Chapter Three or Four reductions or

enhancements. month) term

See USSG § 2K2.4(a). to the range

Adding this ten-year (120above, Smith's total

calculated

advisory Guidelines range was 715-773 months. Harris, 498 F.3d at 293-94.

United States v.

After hearing from counsel and Smith at resentencing, the district court again imposed a 960-month sentence. In

imposing sentence, the court addressed each of the 18 U.S.C. 3

§ 3553(a) (2006) sentencing factors. McAbier was an innocent citizen

The court commented that and community leader who

promoted respect for the law. firebombing "horrendous." "beyond what of her home,

Had she been killed during the her murder would have been

Smith's crimes, the district court found, were civilized society will accept." Smith was a

dangerous person from whom the public should be protected and who should never be released from prison. that a sentence within the advisory The court concluded range was

Guidelines

insufficient to achieve the sentencing goals but that a 960month sentence would serve them instead.

II We review a sentence for reasonableness, applying an abuse-of-discretion standard. Gall v. United States, 552 U.S. In conducting our review, "significant (or procedural improperly

38, ___, 128 S. Ct. 586, 597 (2007). we first examine including the sentence to for

error,"

"failing

calculate

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence. . . ." "consider imposed." the Id. substantive At this reasonableness stage, 4 we "take of into

Id. the

We next sentence the

account

totality

of

the

circumstances,

including Id.

the

extent

of

any

variance from the Guidelines range."

"If the district

court decides to impose a sentence outside the Guidelines range, it must ensure that its justification supports `the degree of the variance.'" United States v. Evans, 526 F.3d 155, 161 (4th

Cir.), cert. denied, 129 S. Ct. 476 (2008) (quoting Gall, 128 S. Ct. at 597).

III Smith contends that he was improperly found to be a career offender. Under the applicable guideline:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. USSG § 4B1.1(a). According to the PSR, Smith had the requisite two previous felony convictions (for second degree assault and possession with intent to distribute cocaine), and he otherwise qualified as a career offender. Smith contends that, because

the two convictions were disposed of at one time, they should have been treated as one sentence under USSG § 4A1.2(a)(2), and he accordingly had only one qualifying felony for career

offender purposes.

5

The

relevant

guideline

provides,

"Prior

sentences

always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest." § 4A1.2(a)(2). USSG

The PSR discloses that Smith was arrested on He was

February 28, 1997, after he assaulted a bus driver.

arrested on July 23, 1997, after he was observed selling crack cocaine. offenses. Smith was sentenced the two on April 15, 1999, for these the

Because

offenses

were

separated

by

intervening arrest for the assault, it is irrelevant that they were consolidated for sentencing. offender. Smith qualified as a career

IV The district court applied the cross-reference for

assault with intent to commit murder to the grouped offenses. See USSG § 2A2.1(a)(1). The court found as a fact that the act

of hurling six Molotov cocktails at McAbier's home--three at her front door; three at the back door--revealed a clear intent to block her escape from her burning home, and thereby to murder her. Smith contends that, because McAbier was not injured, the

cross-reference for aggravated assault, USSG § 2A2.2, or minor assault, USSG § 2A2.3, should have applied instead. We conclude

that the district court's findings supporting application of the cross-reference for assault with intent to commit murder are not 6

clearly erroneous, and they will not be disturbed on appeal. See United States v. Crump, 120 F.3d 462, 467-68 (4th Cir.

1997).

V Although (1)(D)(ii) and Smith recognizes that 18 U.S.C. the §§ 924(c) of

844(h)

specifically

require

imposition

consecutive sentences, he argues that, after United States v. Booker, 543 U.S. 220 (2005), sentencing courts may ignore

mandatory statutory language.

Contrary to Smith's assertion,

"Booker did nothing to alter the rule that judges cannot depart below a statutorily required minimum sentence. . . . [A]

district judge has no discretion to impose a sentence outside of the statutory range established by Congress for the offense of conviction." United States v. Robinson, 404 F.3d 850, 862 (4th

Cir. 2005) (emphasis in original).

VI Smith's final contention is that his 960-month

variance sentence is unreasonable and that he should have been sentenced within his advisory Guidelines range. We conclude

after carefully reviewing the record that the district court committed no "significant procedural error." Ct. at 597. Further, based 7 on the See Gall, 128 S. totality of the

circumstances, and giving "due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance," see id., we are convinced that the sentence is substantively reasonable.

VII We accordingly affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not

significantly aid the decisional process. AFFIRMED

8