US v. Gary Smith
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00302-TDS-1,1:09-cr-00371-TDS-1. Copies to all parties and the district court/agency. [998784507].. [11-4465]
Appeal: 11-4465
Document: 48
Date Filed: 02/09/2012
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4465
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY CHARLES SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem.
Thomas D.
Schroeder, District Judge. (1:09-cr-00371-TDS-1; 1:10-cr-00302TDS-1)
Submitted:
January 31, 2012
Decided:
February 9, 2012
Before GREGORY, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gary Charles Smith appeals his conviction for access
device fraud and one of his convictions for aggravated identity
theft, and the 222-month sentence imposed by the district court
following
guilty
pleas
violation
of
U.S.C.
aggravated
18
identity
to
three
§
counts
1344(1)
theft
in
of
(2006),
violation
bank
six
of
fraud
in
counts
of
18
U.S.C.
§ 1028A(a)(1) (2006), money laundering in violation of 18 U.S.C.
§
1956(a)(1)
U.S.C.
(2006),
§ 1029(a)(2)
access
device
(2006),
and
fraud
in
social
violation
security
violation of 42 U.S.C. § 408(a)(6) (2006).
of
fraud
18
in
On appeal, Smith
contends that the district court erred by not committing him to
a
suitable
facility
for
mental
health
treatment
in
lieu
of
sentencing him to imprisonment, pursuant to 18 U.S.C. § 4244(d)
(2006).
Smith also asserts several challenges to his sentence
and two of his convictions.
We affirm.
Under 18 U.S.C. § 4244(d), a defendant with a mental
disease
or
committed
defect
for
incarceration.
may
receive
treatment
a
prior
provisional
to
his
final
sentence
and
sentencing
be
and
Commitment under § 4244(d) occurs if, after a
hearing on the defendant’s current mental condition, “the court
finds by a preponderance of the evidence that the defendant is
presently suffering from a mental disease or defect and that he
should, in lieu of being sentenced to imprisonment, be committed
2
Appeal: 11-4465
to
a
Document: 48
suitable
§ 4244(d).
Date Filed: 02/09/2012
facility
for
care
Page: 3 of 8
or
treatment.”
18
U.S.C.
In making this determination, the district court is
required to find both a mental disorder “and that the defendant
should
be
hospitalized
in
lieu
of
imprisonment.”
States v. Buker, 902 F.2d 769, 770 (9th Cir. 1990).
United
A district
court’s determination as to a defendant’s mental condition is a
finding
of
fact
that
we
review
for
clear
error.
States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990).
for
abuse
of
discretion
a
district
court’s
United
We review
finding
that
a
defendant should not be committed to a mental health facility in
lieu of imprisonment.
See United States v. General, 278 F.3d
389, 397 (4th Cir. 2002) (reviewing for abuse of discretion a
district
court’s
determination
concerning
a
defendant’s
competency to be sentenced under 18 U.S.C. § 4244).
Having
district
court
assuming
Smith
important
reviewed
did
not
record,
abuse
suffered
governmental
the
its
from
a
interests
we
conclude
discretion
mental
would
in
disease
not
be
that
ruling
or
the
that,
defect,
served
by
his
commitment under the statute.
See United States v. Jensen, 639
F.3d
2011).
802,
805-06
(8th
Cir.
Therefore,
this
claim
entitles Smith to no relief.
Next,
sentence.
Smith
asserts
several
challenges
to
his
We review a sentence for reasonableness, using an
abuse of discretion standard of review.
3
Gall v. United States,
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Date Filed: 02/09/2012
552 U.S. 38, 46, 51 (2007).
requires
us
to
ensure
that
155, 161 (4th Cir. 2008).
calculating
the
Guidelines
§ 3553(a) factors.
(4th Cir. 2009).
The first step in this review
the
significant procedural error.
Page: 4 of 8
district
court
committed
no
United States v. Evans, 526 F.3d
Procedural errors include improperly
range
or
failing
to
consider
the
United States v. Carter, 564 F.3d 325, 328
In determining whether a district court has
properly applied a particular Guidelines provision, we review
its factual findings for clear error and its legal conclusions
de novo.
United States v. Osborne, 514 F.3d 377, 387 (4th Cir.
2008).
Smith first challenges the district court’s imposition
of
a
two-level
Sentencing
increase
Guidelines
in
Manual
his
offense
(“USSG”)
level
under
§ 2S1.1(b)(3)
U.S.
(2010),
based on its finding that he was engaged in sophisticated money
laundering.
Under USSG § 2S1.1(b)(3), a two-level enhancement
in the defendant’s offense level is warranted if the defendant
is
convicted
of
violating
18
U.S.C.
§
involved sophisticated money laundering.
§
2S1.1
intricate
defines
sophisticated
offense
conduct
1956
the
offense
The commentary to USSG
laundering
pertaining
and
to
as
the
“complex
or
execution
or
concealment of the 18 U.S.C. § 1956 offense,” that “typically
involves the use of” fictitious entities, shell corporations, or
layering of transactions.
USSG § 2S1.1, cmt. n.5(A).
4
After
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reviewing the record, we conclude that the district court did
not err in finding that Smith was engaged in sophisticated money
laundering, warranting the two-level increase.
Smith next contends that the district court erred in
imposing the two-level vulnerable victim enhancement under USSG
§ 3A1.1(b)(1), because there was no evidence to show that he
actually
knew
that
his
unusually
vulnerable.
defendant
knew
victims,
offense
was
a
or
The
should
vulnerable
incarcerated
increase
have
is
known
victim.”
inmates,
warranted
that
USSG
the
§
were
“[i]f
victim
of
3A1.1(b)(1).
the
the
In
making this determination, the district court must find that a
victim
was
defendant
unusually
knew
or
vulnerable,
should
have
and
known
assess
of
such
whether
the
vulnerability.
United States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010).
After reviewing the record, we conclude that the district court
did not err in imposing this enhancement.
Next, Smith challenges the district court’s imposition
of six consecutive twenty-four-month sentences for his multiple
§ 1028A convictions.
Smith argues that his underlying fraud
offenses were grouped under USSG § 3D1.2, and the district court
procedurally
erred
imposing
consecutive
six
by
failing
to
sentences
explain
for
his
its
reasons
multiple
§
for
1028A
convictions when the Guidelines recommended that these sentence
run concurrently.
5
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Under 18 U.S.C. § 1028A, if a defendant wrongfully
uses the identity of another person during and in relation to a
bank or social security fraud, a sentencing court is required to
impose a twenty-four-month sentence consecutive to the sentence
imposed for the underlying fraud.
(b)(2).
In
cases
where
a
See 18 U.S.C. § 1028A(a)(1),
defendant
has
been
convicted
of
multiple counts under 18 U.S.C. § 1028A(a)(1), a court, in its
discretion,
can
run
each
of
the
twenty-four-month
concurrently with one another, in whole or in part.
§ 1028A(b)(4).
consecutive
or
In
exercising
concurrent
its
sentences
discretion
for
multiple
sentences
18 U.S.C.
to
impose
convictions
under § 1028A, the court must consider a non-exhaustive list of
factors that includes the nature and gravity of the underlying
offenses,
whether
those
offenses
are
groupable
under
USSG
§ 3D1.2, and whether the purposes of sentencing set forth in 18
U.S.C.
§
concurrent
3553(a)(2)
sentences.
are
better
See
USSG
achieved
§
5G1.2
with
cmt.
consecutive
n.2(B).
or
The
sentencing court must adequately explain its decision to impose
consecutive sentences pursuant to § 1028A.
See United States v.
Dvorak, 617 F.3d 1017, 1029 (8th Cir. 2010).
After reviewing the record, we find that the district
court properly noted that Smith’s underlying fraud offenses were
grouped under USSG § 3D1.2, but in a proper exercise of its
discretion, found that the purposes of sentencing set forth in
6
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Document: 48
U.S.C.
Date Filed: 02/09/2012
§ 3553(a)(2)
consecutive
sentences.
were
We
Page: 7 of 8
better
conclude
achieved
that
the
by
imposing
district
court
thoroughly considered those factors in making its determination,
and the resulting sentence is not substantively unreasonable.
Smith claims that the district court plainly erred in
failing to dismiss, on its own motion, one of the counts of
access device fraud and one count of aggravated identity theft
to
which
he
sentencing
pled
guilty
showed
that
elements of the crimes.
because
the
the
Government
evidence
could
offered
at
prove
the
not
We note that, in making this argument,
Smith does not challenge the voluntariness of his guilty plea.
“When a defendant pleads guilty, he waives all nonjurisdictional
defects
entry of the plea.”
in
the
proceedings
conducted
prior
United States v. Moussaoui, 591 F.3d 263,
279 (4th Cir. 2010) (internal quotation marks omitted).
that
because
to
Smith’s
guilty
plea
to
the
crimes
We find
was
both
counseled and voluntary, he cannot now challenge his conviction
based on his contention that the evidence at sentencing failed
to prove the elements of those crimes.
Thus, we conclude that
Smith is not entitled to relief.
Accordingly, we affirm the district court’s judgment.
We
dispense
with
oral
argument
7
because
the
facts
and
legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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