US v. Christopher Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:08-cr-00453-HFF-1 Copies to all parties and the district court/agency. [998658031].. [10-5324]

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Document: 18

Date Filed: 08/18/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5324

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER LEE SMITH,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00453-HFF-1)

Submitted:

June 27, 2011

Decided:

August 18, 2011

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Benjamin
T.
Stepp,
Assistant
Federal
Public
Defender,
Greenville, South Carolina, for Appellant.
Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Christopher

Lee

Smith

pled

guilty

without

a

plea

agreement to possession with intent to distribute 500 grams or
more

of

cocaine

and

possession

with

intent

to

distribute

a

quantity of cocaine and fifty grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006).

The district court

sentenced him to 168 months’ imprisonment, the bottom of the
Guidelines

range.

In

Anders 1

his

brief,

Smith’s

appellate

counsel states there are no meritorious issues for appeal but
asks the court to review the reasonableness of Smith’s sentence
and

whether

Smith’s

trial

assistance at sentencing. 2
Although

counsel

counsel

rendered

We affirm.
suggests

that

the

unreasonable, he points to no specific error.
review

1

a

sentence

for

ineffective

reasonableness,

sentence

is

Appellate courts

applying

an

abuse

of

Anders v. California, 386 U.S. 738 (1967).

2

In his pro se supplemental brief, Smith likewise argues
that his attorney at sentencing rendered ineffective assistance.
This court “may address [claims of ineffective assistance] on
direct appeal only if the lawyer’s ineffectiveness conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). We conclude that Smith fails to meet
this standard and decline to address these claims in this direct
appeal.
Smith also contends on appeal that he should be
resentenced in accordance with the Fair Sentencing Act of 2010.
His claim is foreclosed by our decision in United States v.
Bullard, __ F.3d __, __, 2011 WL 1718894, at *9-*11 (4th Cir.
May 6, 2011) (No. 09-5214).

2

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discretion standard.
(2007).

The

court

Page: 3 of 5

Gall v. United States, 552 U.S. 38, 51
reviews

first

the

reasonableness

of

the

process by which the sentencing court arrived at its decision
and then reviews the reasonableness of the sentence itself.

Id.

Because

our

counsel

did

not

argue

review is for plain error.

for

any

certain

sentence,

See United States v. Lynn, 592 F.3d

572, 577-78, 580 (4th Cir. 2010); see also United States v.
Hernandez, 603 F.3d 267, 270 (4th Cir. 2010) (reviewing claim of
procedural

unreasonableness

for

plain

error

because

defendant

did not argue for sentence different from sentence he received).
In
sentence,
calculated

determining

the

consider

whether

we
the

Guidelines

procedural
the

range,

reasonableness

district

treated

the

court

of

a

properly

Guidelines

as

advisory, considered the 18 U.S.C. § 3553(a) (2006) factors,
analyzed

any

arguments

presented

by

the

sufficiently explained the selected sentence.
51.

parties,

and

Gall, 552 U.S. at

“Regardless of whether the district court imposes an above,

below,

or

within-Guidelines

record

an

individualized

sentence,

assessment

facts of the case before it.”

it

based

must
on

place
the

on

the

particular

United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).
Where, as here, the district court imposed a within-Guidelines
sentence, the explanation may be “less extensive, while still
individualized.”

United States v. Johnson, 587 F.3d 625, 639
3

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(4th Cir. 2009), cert. denied, 130 S. Ct. 2128 (2010).

However,

that explanation must be sufficient to allow for “‘meaningful
appellate review,’” Carter, 564 F.3d at 330 (quoting Gall, 552
U.S. at 50), such that the appellate court need “not guess at
the district court’s rationale.”

Id. at 329.

Here, the district court properly calculated Smith’s
Guidelines range.

Although the district court did not give a

reasoned explanation for the sentence it imposed, 3 the record
does not indicate that the court might have imposed a lower
See Hernandez, 603 F.3d at 273 (stating that error

sentence.

affects substantial rights if defendant “show[s] that, absent
the

error,

Because

a

Smith

substantial

different
cannot

rights,

sentence
show

we

that

conclude

might

have

the

error

that

the

been

imposed”).

prejudiced
district

his
court

committed no reversible procedural error.
We next assess the substantive reasonableness of the
sentence,

“taking

into

account

the

‘totality

of

the

circumstances, including the extent of any variance from the
Guidelines range.’”

United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51).

Where, as here,

a defendant’s sentence falls within the Guidelines range, the
3

We note that the district court did not have the benefit
of our decisions in Carter, Lynn, and Hernandez at the time it
sentenced Smith.

4

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district

Date Filed: 08/18/2011

court’s

reasonableness.

decision

Page: 5 of 5

enjoys

a

presumption

of

United States v. Allen, 491 F.3d 178, 193 (4th

Cir. 2007) (“A sentence within the proper Sentencing Guidelines
range is presumptively reasonable.”).

Smith has failed to rebut

that presumption of reasonableness.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment.

This court

requires that counsel inform Smith, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Smith requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

and

materials

legal
before

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Smith.
facts

court

We dispense with oral argument because the

contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

5