US v. Antonio Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00011-FDW-DCK-1. Copies to all parties and the district court. [999745362]. [15-4062]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4062

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO DONTE SMITH,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:13-cr-00011-FDW-DCK-1)

Submitted:

January 27, 2016

Decided:

February 1, 2016

Before KING, WYNN, and THACKER, Circuit Judges.

Affirmed
in
part,
vacated
in
part,
and
instructions by unpublished per curiam opinion.

remanded

with

Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North
Carolina, for Appellant.
Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Antonio Donte Smith of Hobbs Act robbery
(Count 1), in violation of 18 U.S.C. § 1951 (2012); brandishing
a firearm during a crime of violence (Count 2), in violation of
18 U.S.C. § 924(c)(1)(A)(ii) (2012); and possession of a firearm
by a felon (Count 3), in violation of 18 U.S.C. § 922(g)(1)
(2012).
concluded

At the first sentencing hearing, the district court
that

Smith

did

not

qualify

as

an

armed

career

criminal, see 18 U.S.C. § 924(e) (2012), and sentenced him to
concurrent 63-month terms of imprisonment on Counts 1 and 3 plus
a consecutive 84-month term of imprisonment on Count 2, for a
total sentence of 147 months’ imprisonment.
court

entered

a

written

judgment,

the

Before the district

Government

moved

for

reconsideration of the sentence under Fed. R. Crim. P. 35(a).
Seventy days after the original sentencing hearing, the district
court conducted a second hearing, classified Smith as an armed
career criminal, and sentenced him to concurrent 188-month terms
of imprisonment on Counts 1 and 3 plus a consecutive 84-month
term of imprisonment on Count 2, for a total sentence of 272
months’ imprisonment.
On appeal, Smith argues that the district court plainly
erred when it resentenced him as an armed career criminal in

2

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January 2015. 1

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The Government concedes that the district court

lacked jurisdiction to rule on its motion at the time of that
ruling.
The

Federal

Rules

of

Criminal

Procedure

“provide[]

sentencing courts with a narrow window of [14] days within which
to

correct

United

arithmetical,

States

v.

technical,

Shank,

395

F.3d

or
466,

other
468

error.” 2

clear

(4th

Cir.

2005)

(internal quotation marks omitted); see Fed. R. Crim. P. 35(a).
For

purposes

of

this

rule,

“‘sentencing’

announcement of the sentence.”

means

the

Fed. R. Crim. P. 35(c).

35(a)[] establishes a [14]-day jurisdictional limit.”
395 F.3d at 470.
motion

within

oral
“Rule
Shank,

If the district court does not rule on the

the

“effectively denied.”

relevant

time

period,

the

motion

is

Id.

We conclude that the district court lacked jurisdiction to
rule on the Rule 35(a) motion and resentence Smith at the time
of

the

lacked

second

sentencing

jurisdiction

to

hearing.
impose

a

When

the

different

district
sentence,

court
the

1

Smith
asserted
additional
arguments
regarding
his
convictions in his opening brief, but he explicitly abandoned
those issues in his reply brief.
2

At the time of the Shank
days for the district court to
(2004). The rule was amended
days. See Fed. R. Crim. P. 35
amendments.

decision, the rule provided seven
act. See Fed. R. Crim. P. 35(c)
in 2009 to extend the time to 14
advisory committee’s note on 2009

3

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appropriate remedy is to vacate the sentence and remand with
instructions to reinstate the original sentence.

United States

v. Schafer, 726 F.2d 155, 158 (4th Cir. 1984) (“The trial judge
was

without

jurisdiction

former Rule 35(b)].

to

reduce

Schafer’s

sentence

[under

We, therefore, hold that reinstatement of

the original sentence is an appropriate remedy.”); cf. United
States

v.

conclude

Jones,
that

238

the

F.3d

district

271,

273

court

Jones’ criminal judgment . . . .

(4th

lacked

Cir.

2001)

authority

to

(“[W]e
amend

We therefore vacate the order

of the district court amending Jones’ sentence and remand with
instructions to reinstate the original sentence.”).
Accordingly, we vacate the district court’s judgment as to
Smith’s

sentence

and

remand

with

instructions

to

impose

the

sentence announced at the October 29, 2014, sentencing hearing.
We affirm Smith’s convictions.

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED IN PART;
VACATED IN PART;
AND REMANDED
WITH INSTRUCTIONS

4