US v. Eric Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00736-TLW-1 Copies to all parties and the district court/agency. [999875353].. [15-4491]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4491

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC DEAN SMITH, a/k/a Big E,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Terry L. Wooten, Chief District
Judge. (3:14-cr-00736-TLW-1)

Submitted:

June 28, 2016

Decided:

June 30, 2016

Before SHEDD, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Steven M. Hisker, HISKER LAW FIRM, PC, Duncan, South Carolina,
for Appellant.
Jane Barrett Taylor, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eric Dean Smith pled guilty pursuant to a plea agreement to
conspiracy to knowingly, intentionally, and unlawfully possess
with intent to distribute and to distribute 5 kilograms or more
of powder cocaine and 280 grams or more of cocaine base, in
violation

of

21

U.S.C.

§ 841(a)(1),

(b)(1)(A)

(2012),

and

knowingly possessing an animal in interstate commerce for an
animal

fighting

venture,

in

violation

(2012), 18 U.S.C. §§ 2, 49 (2012).

of

7

U.S.C.

§ 2156(b)

Smith was sentenced to 360

months’ imprisonment for the drug conspiracy and a concurrent 60
months’

imprisonment

for

the

animal

fighting

venture.

His

counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious issues for
appeal, but raising for the court’s consideration whether the
sentence

was

reasonable.

Smith

filed

a

pro

se

supplemental

brief challenging the Sentencing Guidelines enhancement for his
role in the offense and the career offender designation.
Government did not file a brief.

The

After a careful review of the

record, we affirm.
We

review

a

sentence’s

procedural

reasonableness for an abuse of discretion.

procedural

errors

such

as

improper

substantive

United States v.

Howard, 773 F.3d 519, 527-28 (4th Cir. 2014).
for

and

We first review

calculation

of

the

Guidelines range, failure to consider the 18 U.S.C. § 3553(a)
2

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(2012)

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sentencing

factors,

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selection

of

a

sentence

based

on

clearly erroneous facts, or failure to adequately explain the
sentence, Gall v. United States, 552 U.S. 38, 51 (2007).

Absent

any procedural error, we examine the substantive reasonableness
of the sentence under “the totality of the circumstances.”

Id.

Sentences within or below a properly calculated Guidelines range
are presumed substantively reasonable, and this “presumption can
only be rebutted by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.”

United

States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Because Smith withdrew his objections to the presentence
report, he has waived review of those issues.

United States v.

Robinson, 744 F.3d 293, 298 (4th Cir. 2014) (“[W]hen a claim is
waived, it is not reviewable on appeal, even for plain error.”).
Insofar as Smith may have forfeited review of an alleged error
by failing to raise a timely objection, we review for plain
error.
Cir.

Id.; United States v. Hamilton, 701 F.3d 404, 410 (4th
2012).

To

(1) error;

(2) that

substantial

establish

rights.

1121, 1126-27 (2013).

was

plain

plain;

Henderson

error,

and
v.

(3)

United

Smith
that

must

show:

affected

States,

133

S.

his
Ct.

If all three conditions are met, we will

exercise our discretion to notice the error, but only if the
error

seriously

affects

the

fairness,

3

integrity,

or

public

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reputation

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of

the

judicial

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proceedings.

Johnson

v.

United

States, 520 U.S. 461, 467 (1997).
We conclude there was no plain error with the drug quantity
attributed to Smith or the finding that he is a career offender
under

U.S.

Sentencing

Guidelines

Manual

§ 4B1.1(b)

(2014).

Because Smith requested a below-Guidelines sentence, we review
the within-Guidelines sentence for abuse of discretion.

See

United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010)
(stating standard of review).
court’s

within-Guidelines

We conclude that the district

sentence

is

both

procedurally

and

substantively reasonable and not an abuse of discretion.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We therefore affirm Smith’s convictions and sentence.

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

representation.

in

and

legal

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Smith.
facts

this

We dispense with oral argument because the

contentions

are

4

adequately

presented

in

the

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.
AFFIRMED

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