US v. Derrick Smith

Filing 920091023

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4432

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK LASHAWN SMITH, a/k/a D-Love, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:04-cr-00047-nkm-17)

Submitted:

October 5, 2009

Decided:

October 23, 2009

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Frederick T. Heblich, Jr., Assistant Federal Public Defender, Charlottesville, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Ronald M. Huber, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Derrick Lashawn Smith appeals the eighteen-month

sentence he received when the district court found him guilty of a Grade C violation of his supervised release. On appeal, Smith

asks this court to vacate the sentence because it is plainly unreasonable. sentence. In 2005, a federal grand jury charged Smith and We reject Smith's arguments and affirm his

sixteen other defendants with conspiracy to possess with intent to distribute or fifty more of grams or more and of crack cocaine, five of

kilograms

cocaine,

unspecified

quantities

heroin, PCP, and marijuana, in violation of 21 U.S.C. §§ 841(a), 846 (2006), and conspiracy to participate ("RICO"), in in a Racketeer of 18

Influenced

Corrupt

Organization

violation

U.S.C. § 1962(d) (2006). Smith's sentencing was

Smith pled guilty to the RICO charge. under months' the advisory Sentencing Upon the

range

Guidelines

324-405

imprisonment.

Government's motion, the court departed downward from this range because Smith had substantially assisted the Government, and

sentenced Smith to twenty-four months' imprisonment and three years' supervised release. reduced to nineteen months, In May 2008, Smith's sentence was as a result of his 18 U.S.C.

§ 3582(c)(2) (2006) motion based on the crack cocaine amendment to the Sentencing Guidelines. 2

On August 26, 2008, Smith began his supervised release term. was Less than four months later, on December 11, 2008, Smith arrested and charged with possession of marijuana and

driving with a suspended license.

Smith's probation officer

filed a violation report based on this conduct, classifying it a Grade C violation. § 7B1.1(a)(3), category range of V p.s. U.S. Sentencing Guidelines Manual ("USSG") (2008). history, This, resulted combined in a with Smith's statement p.s. the

criminal

policy §

7-13 the

months'

imprisonment. conviction was a

USSG

7B1.4(a), A felony,

Because

original

Class

statutory maximum term of imprisonment for the violation was sixty months. See 18 U.S.C. §§ 1963(a), 3559(a)(1), 3583(e)(3)

(2006); 21 U.S.C. § 841(b)(1)(A)(ii), (iii) (2006). At the revocation hearing, the Government argued for an upward departure from the policy statement range because

Smith's original sentence resulted from a downward departure. Although Smith conceded the violation, he asked the court to consider certain facts that he maintained mitigated the severity of the violation, including that the offense involved a very small amount of marijuana; that Smith had not failed a drug test; that Smith had cooperated with his probation officer; and that Smith was pursuing a GED and taking steps to have his driver's license reinstated. In addition to this proffer by

3

counsel, Smith's uncle testified that he would offer Smith fulltime employment if Smith were released. The district court found Smith guilty of the violation and sentenced him to eighteen months' imprisonment. The court

explained this was "an upward departure based on the substantial 5K motion that he received on the underlying offense." On appeal, Smith contends the district court failed to adequately explain the basis for its decision to depart upward from the policy statement range, and argues that his sentence is plainly unreasonable, both procedurally and substantively. We will affirm a sentence imposed after revocation of supervised release if it is not plainly unreasonable. States v. Crudup, 461 F.3d 433, 437 (4th Cir. United The

2006).

sentence first must be assessed for reasonableness, "follow[ing] generally the procedural and substantive considerations that we employ in our review of original sentences, . . . with some necessary modifications to take into account the unique nature of supervised release revocation sentences." Id. at 438-39; see

United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) ("In applying determine, States, 128 the `plainly the Ct. unreasonable' given standard, in Gall a we [v. first United is

using S.

instructions 586, 597

(2007)],

whether

sentence

`unreasonable.'").

4

Upon

finding

a

revocation

sentence

is

not

unreasonable, we will affirm the sentence. 439.

Crudup, 461 F.3d at

Only if a sentence is found procedurally or substantively

unreasonable will this court "decide whether the sentence is plainly unreasonable." Id.; see Finley, 531 F.3d at 294.

Although the district court must consider the Chapter 7 policy statements and the requirements of 18 U.S.C. §§ 3553(a), 3583 (2006), "the [district] court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum." Crudup, 461 F.3d at 439 (internal

quotation marks and citations omitted). Smith's challenge to the procedural reasonableness of his sentence for lacks its merit. The district that court Smith articulated had a

reason

upward

departure:

previously

received a significant downward departure.

As Application Note

4 to USSG § 7B1.4, p.s., specifically contemplates a departure on this very basis, and the Government made the court aware of this and the extent of the court's previous downward departure, we find this explanation was sufficient. "[A] court's statement

of its reasons for going beyond non-binding policy statements in imposing a sentence after revoking a . . . supervised release term need not be as specific as has been required when courts departed from guidelines." Crudup, 461 F.3d at 439 (internal

quotation marks, citation, and emphasis omitted). 5

Smith next asserts that his sentence is substantively unreasonable because the district court failed to provide a

sufficient explanation for the eighteen-month term and the term was greater than necessary. According to Smith, the court heard

testimony and proffer that weighed against an upward departure, but did not specifically address any of those facts prior to imposing the departure sentence. Thus, Smith maintains, the

sentence is substantively unreasonable. Consideration of the substantive reasonableness of a sentence requires an assessment of the totality of circumstances underlying the sentence, including the extent of any variance from the Guidelines range. 210, 261 (4th Cir. 2008). district court did not United States v. Abu Ali, 528 F.3d While Smith is correct that the the facts that he argued in

address

support of a within-policy range sentence, this omission does not render the sentence substantively unreasonable. It is

apparent the district court determined that the considerations advanced by Smith were simply insufficient to overcome the

single reason advanced for the upward departure: that, although Smith's twenty-four month sentence was the product of a 93%

reduction from the bottom of his original guideline range, less than four months after his release from that sentence, Smith violated the terms of his supervised release. This violation

was a plain breach of the court's trust, see Crudup, 461 F.3d at 6

437-38, exercised

and its

in

light

of

that to

breach,

the

district from the

court policy

discretion

depart

upward

statement range of seven to thirteen months' imprisonment to sentence Smith to a term of eighteen months. This departure is

modest in light of the totality of the circumstances, and is well within the five-year statutory maximum. For imposed was the foregoing and reasons, thus we find the sentence court's

reasonable

affirm

the

district

judgment. legal before

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

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