United States v. David Smith

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Pasco M. Bowman and Raymond W. Gruender (UNPUBLISHED); Denying [3961060-2] motion for appointment of new counsel filed by Appellant Mr. David Alex Smith.; Granting [3953761-2] motion to withdraw as counsel filed by Mr. Morse U. Gist, Jr.. [4023531] [12-2630]

United States Court of Appeals
For the Eighth Circuit
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No. 12-2630
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
David Alex Smith
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
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Submitted: April 3, 2013
Filed: April 10, 2013
[Unpublished]
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Before WOLLMAN, BOWMAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
David Smith pleaded guilty to 12 counts of producing child pornography, in
violation of 18 U.S.C. § 2251(b), (e). The district court1 imposed concurrent
1

The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.

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sentences of 50 years in prison for each count and a lifetime term of supervised
release. On appeal, Smith’s counsel has moved to withdraw and has filed a brief
under Anders v. California, 386 U.S. 738 (1967), in which he argues that the district
court erred in calculating the Guidelines range; that a downward variance was
warranted based on Smith’s age and the abuse he suffered as a child; and that the
district court did not set out specific facts justifying the sentence imposed. Smith has
moved for appointment of counsel, and in a pro se brief, he argues that his guilty plea
was coerced, and that the district court lacked subject-matter jurisdiction over his
case.
Upon careful review of the prison sentence, we conclude that the court
correctly calculated the Guidelines range, see United States v. Bates, 584 F.3d 1105,
1108 (8th Cir. 2009) (de novo review of district court’s interpretation and application
of Guidelines); that the court sufficiently explained its sentence, see United States v.
Gonzalez, 573 F.3d 600, 607 (8th Cir. 2009) (in imposing sentence, district court
need not engage in mechanical recitation of 18 U.S.C. § 3553(a) factors); and that the
court committed no significant procedural error, properly considered and weighed
appropriate sentencing factors, and did not impose a substantively unreasonable
sentence, see United States v. Feemster, 572 F.3d 455, 460-62 (8th Cir. 2009) (en
banc) (appellate court’s review of sentence for abuse of discretion includes (1)
ensuring no significant procedural error occurred, and (2) considering substantive
reasonableness under totality of circumstances).
As to Smith’s pro se arguments, we conclude that the jurisdictional argument
is meritless, see United States v. Romero-Galue, 757 F.2d 1147, 1150-51 n.10 (11th
Cir. 1985) (district court “obviously had subject matter jurisdiction” because
Congress, pursuant to 18 U.S.C. § 3231, “conferred upon the federal district courts
the power to adjudicate all cases involving crimes against the United States”), and
that his coerced-guilty-plea claim is not cognizable in this direct criminal appeal, see
United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990) (claim that guilty plea
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was involuntary is not cognizable on direct appeal unless first presented to district
court).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issue for appeal. Accordingly, we
grant counsel’s motion to withdraw, deny Smith’s motion for appointment of counsel,
and affirm the judgment of the district court.
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