US v. Marcil Smith


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:95-cr-00081-F-1 Copies to all parties and the district court/agency. [998469290] [09-5076]

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US v. Marcil Smith Doc. 0 Case: 09-5076 Document: 28 Date Filed: 11/19/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5076 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARCIL ANTONIO SMITH, a/k/a Tony, a/k/a Tony Smith, a/k/a Fat Cat, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:95-cr-00081-F-1) Submitted: October 29, 2010 Decided: November 19, 2010 Before WILKINSON, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-5076 Document: 28 Date Filed: 11/19/2010 Page: 2 PER CURIAM: Marcil Antonio Smith appeals the thirty-six-month sentence imposed by the district court upon revocation of his supervised release. We previously vacated a sixty-month revocation sentence and remanded for resentencing because the district court upwardly departed from the five-to-eleven month advisory range based on a finding that Smith had twice previously been accorded leniency during revocation proceedings after the court found that Smith had engaged in criminal conduct including the use of marijuana. Because the district court had not found that Smith used marijuana and had found only one prior violation conceded States v. of the terms and we of his supervision, for (4th the Government United 9, 2009) error, Smith, remanded 09-4246 resentencing. Cir. July No. (unpublished order). On remand, the district court again upwardly departed from the advisory guideline range and explained its departure by reference to the leniency that it twice afforded Smith and that Smith continued to engage in criminal conduct. The court also stated that Smith continued to disregard the conditions of his supervision and that "no amount or level of supervision [ ] could insure the safety of the community from the harms of this defendant." conduct for The district court explained that the only criminal which it found a 2 violation of supervision was Case: 09-5076 Document: 28 Date Filed: 11/19/2010 Page: 3 Smith's driving after his license was revoked. However, the court also relied on the fact that Smith had been in and out of prison since for age 16, his to -- criminal sell and and history deliver -- including and convictions resisting a conspiracy officer cocaine allowed public the leniency when, "[i]n 2007, Smith appeared before this court on two separate occasions for revocation hearings." On appeal from the thirty-six-month revocation sentence, Smith contends that the district court made the same error after remand finding of his as that the which court resulted had in the found remand Smith -- in him erroneously violation that twice and supervised release yet afforded leniency by continuing his supervision. We will affirm a sentence imposed after revocation of supervised maximum release is not if it is within the applicable United statutory States v. and plainly unreasonable. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). only if we conclude that a sentence is However, or procedurally substantively unreasonable will we consider whether the sentence is plainly unreasonable. During sentence within the the Id. at 439. proceeding, Smith or requested at least a a revocation advisory guideline range, lesser departure. than the one Because Smith requested a sentence different any error 3 by the district court must imposed, Case: 09-5076 Document: 28 Date Filed: 11/19/2010 Page: 4 result in a reversal unless the error is harmless. States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). On remand, Smith's counsel repeatedly See United informed the district court that no violation was found during Smith's second revocation hearing in 2007. In providing its reasons for departing upward to thirty-six months, the district court stated that Smith was twice afforded leniency in revocation proceedings in 2007. However, the district court's overall findings in support of the upward departure differed after remand from those that resulted in the remand. Notably, in the prior ruling, the district court found that Smith had committed violations on two prior occasions, with one being for use of marijuana. Based on that finding and others, the district court departed upward to sixty months. Here, with slightly modified findings, but still stating that the court twice afforded Smith leniency, the court sentenced Smith to thirty-six months. In findings, light of the totality of the his district court's with including Smith's recidivism, involvement drugs, his lack of respect for authority, and the fact that he received a significant downward departure at his original sentence, and the district court's conclusion that "no amount or level of supervision [ ] could insure the safety of the community from the harm of [Smith,]" we conclude that any error by the court in stating that Smith was twice afforded leniency 4 Case: 09-5076 Document: 28 Date Filed: 11/19/2010 Page: 5 did not affect the length of his sentence, and therefore was harmless. Further, we hold that the thirty-six-month sentence imposed upon Smith's revocation was not clearly unreasonable, especially when considered in light of the court's findings and the fact that Smith received a downward departure from the guideline range determined for his conviction on the underlying offense. See U.S. Sentencing Guidelines Manual 7B1.4, p.s., comment. (n.4) ("When the original sentence was the result of a downward departure (e.g., as a reward for substantial assistance), . . . an upward departure may be warranted."). Accordingly, we affirm the thirty-six-month sentence imposed by the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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