United States v. James Smith

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Pasco M. Bowman and Diana E. Murphy (UNPUBLISHED);Denying [4323893-2] motion to dismiss case filed by Appellant Mr. James T. Smith. in 15-2889; Denying [4374400-2] motion for bond filed by Appellant Mr. James T. Smith. in 15-2889; Denying [4374400-3] motion to hold case in abeyance filed by Appellant Mr. James T. Smith. in 15-2889; Denying [4374400-4] motion for declaratory judgment filed by Appellant Mr. James T. Smith. in 15-2889; Denying [4392854-2] motion to amend filed by Appellant Mr. James T. Smith. in 15-2889; Denying [4394426-2] motion to withdraw previously filed motion filed by Appellant Mr. James T. Smith. in 15-2889 [4461669] [15-2889, 15-2951]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2889
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James T. Smith
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 15-2951
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Tyrone Smith-El
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Western District of Missouri - Kansas City
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Appellate Case: 15-2889

Page: 1

Date Filed: 10/24/2016 Entry ID: 4461669

Submitted: October 6, 2016
Filed: October 24, 2016
[Unpublished]
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Before LOKEN, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
In these consolidated criminal appeals, James Smith challenges (1) the
judgment of the District Court1 entered upon a jury verdict finding him guilty of bank
robbery and attempted Hobbs Act robbery, 18 U.S.C. §§ 2113(a), 1951, and his
concurrent sentences of 175 months in prison (No. 15-2889); and (2) the imposition
of a consecutive 24-month prison sentence upon revocation of Smith’s supervised
release on a prior federal bank robbery sentence (No. 15-2951). We affirm.
First, contrary to Smith’s view, the indictment sufficiently alleged the elements
of the two offenses for purposes of federal jurisdiction. See 18 U.S.C. § 3231
(vesting federal district courts with original jurisdiction over federal offenses); United
States v. Whitlow, 815 F.3d 430, 433 (8th Cir. 2016) (“An indictment is sufficient if
it contains the elements of the offense charged, lets the defendant know what he
needs to do to defend himself, and would allow him to plead a former acquittal or
conviction if he were charged with a similar offense. Usually an indictment that
tracks the statutory language is sufficient.” (citations omitted)). Specifically, the
indictment on the bank-robbery charge included allegations that Smith took money
from a bank teller using a demand note and a bomb threat and that the bank’s deposits
were insured by the Federal Deposit Insurance Corporation. See 18 U.S.C. § 2113(a),
(f). As to the Hobbs Act robbery, the indictment charged that Smith attempted to take
1

The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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Date Filed: 10/24/2016 Entry ID: 4461669

money from a casino cashier using a demand note and a bomb threat and that the
casino engaged in interstate commerce. See 18 U.S.C. § 1951.
The record also establishes that Smith’s statutory and constitutional
speedy-trial rights were not violated because the period between the indictment and
the trial was not uncommonly long or prejudicial and Smith was tried well within
seventy days, taking into account delays that are excludable under the Speedy Trial
Act. See 18 U.S.C. § 3161(h); United States v. Aldaco, 477 F.3d 1008, 1016–19 (8th
Cir. 2007) (discussing Speedy Trial Act requirements and Sixth Amendment speedy
trial rights). Smith’s speedy-trial rights did not attach to his revocation proceedings.
See United States v. House, 501 F.3d 928, 931 (8th Cir. 2007).
We have reviewed Smith's substantive and constitutional challenges to his
sentence, and we conclude that the District Court did not impose an unreasonable or
unconstitutional sentence by varying upward from the United States Sentencing
Guidelines range after expressing concern about Smith’s criminal history and citing
appropriate sentencing factors. See United States v. David, 682 F.3d 1074, 1077 (8th
Cir. 2012) (considering on review “whether the district court’s upward variance was
an abuse of the court’s discretion”); see also United States v. Contreras, 816 F.3d 502,
514 (8th Cir. 2016) (noting that a sentence within the statutory range is generally not
reviewable under the Eighth Amendment).
Finally, the evidentiary matters mentioned in Smith’s brief, to the extent they
have been sufficiently raised, provide no basis for reversal. See United States v.
Yielding, 657 F.3d 688, 700 (8th Cir. 2011) (observing that an evidentiary dispute
need not be resolved where any error in the admission of the evidence was harmless),
cert. denied, 132 S. Ct. 1777 (2012); United States v. Ali, 616 F.3d 745, 751–52 (8th
Cir. 2010) (explaining that an evidentiary ruling not objected to in the trial court is
reviewed only for plain error).

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We affirm the district court and deny Smith’s pending motions.
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Date Filed: 10/24/2016 Entry ID: 4461669