USA v. Brian Smith

Filing

UNPUBLISHED OPINION FILED. [10-30044 Affirmed] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 12/20/2010 for Appellant Brian Smith [10-30044]

USA v. Brian Smith Case: 10-30044

Document: 00511305550 Page: 1 Date Filed: 11/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30044 S u m m a r y Calendar November 29, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. B R I A N SMITH, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:09-CR-77-1

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* B r ia n Smith appeals the 170-month, within-guidelines sentence imposed fo llo w in g his guilty plea conviction for distribution of heroin in violation of 21 U . S .C . § 841(a)(1) and (b)(1)(C). Smith pleaded guilty pursuant to a plea

a g r e e m e n t that contained a waiver of the right to appeal his sentence. He r e s e r v e d the right to bring a direct appeal only of a sentence imposed in excess o f the statutory maximum.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-30044 Document: 00511305550 Page: 2 Date Filed: 11/29/2010 No. 10-30044 S m it h argues on appeal that the appeal waiver is unenforceable and that h is sentence is substantively unreasonable. W e assume without deciding that the appeal waiver is unenforceable and a d d r e s s instead his challenge to the reasonableness of his sentence. See United S ta te s v. Story, 439 F.3d 226, 230 (5th Cir. 2006) (noting that appeal waiver does n o t implicate our jurisdiction); United States v. Diaz, 344 F. App'x 36, 39-40 (5th C ir . 2009) (pretermiting determination of validity of waiver because appeal was m o r e easily resolved on its merits). S m it h argues that his sentence is substantively unreasonable because the d is t r ic t court erred by concluding that his criminal history was not overstated a n d by failing to give adequate weight to mitigation factors, namely that his p r io r drug offenses did not involve weapons or violence and that his personal h is t o r y and the amount of drugs involved in his drug offenses indicate that he s o ld drugs to support his drug habit. S m it h did not raise a specific objection to the substantive reasonableness o f the sentence imposed. Accordingly, his claim is reviewed for plain error. See U n ite d States v. Mondragon-Santiago, 564 F.3d 357, 361-62 (5th Cir.), cert. d e n ie d , 130 S. Ct. 192 (2009); see United States v. Peltier, 505 F.3d 389, 391-92 (5 t h Cir. 2007) (holding that plain error review applies to unpreserved issues c o n c e r n in g the reasonableness of a sentence). T h e record reflects that the district court implicitly balanced the m itig a tin g factors discussed in Smith's sentencing memorandum and determined t h a t a sentence in the middle of the guidelines range was appropriate under the c ir c u m s t a n c e s . Smith has failed to show that his sentence does not account for a factor that should receive significant weight, gives significant weight to an ir r e le v a n t or improper factor, or represents a clear error of judgment in b a la n c in g sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th C ir . 2009), cert. denied 130 S. Ct. 1930 (2010). Thus, he has failed to rebut the p r e s u m p t io n that his within-guidelines sentence is reasonable. See United 2

Case: 10-30044 Document: 00511305550 Page: 3 Date Filed: 11/29/2010 No. 10-30044 S ta te s v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see Rita v. United States, 551 U .S . 338, 347 (2007). C o n s id e r in g the totality of the circumstances, as we must, see Gall v. U n ite d States, 552 U.S. 38, 51 (2007), we conclude that Smith's sentence is not substantively unreasonable or plainly erroneous. See Rita, 551 U.S. at 359-60. T h e judgment of the district court is AFFIRMED.

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