United States v. Smith , 247 F. App'x 321 ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-2-2007
    USA v. Smith
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 05-4415
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    Recommended Citation
    "USA v. Smith" (2007). 2007 Decisions. Paper 633.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/633
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No: 05-4415
    UNITED STATES OF AMERICA
    v.
    RONALD SMITH,
    Appellant
    Appeal from Judgment of Conviction and Sentence
    in the United States District Court
    for the Eastern District of Pennsylvania
    (Criminal No. 04-cr-00229)
    District Judge: Hon. Michael M. Baylson
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    February 26, 2007
    Before: McKEE, ALDISERT, Circuit Judges,
    and RESTANI,* Judge
    (Opinion Filed August 2, 2007)
    _____________________
    OPINION
    _____________________
    McKEE, Circuit Judge
    Ronald Smith appeals his conviction and sentence for carjacking and related
    offenses. For the following reasons, we will affirm the convictions and the judgment of
    *
    The Honorable Jane A. Restani, Chief Judge of the United States Court of International
    Trade, sitting by designation.
    sentence.1
    Because we write primarily for the parties, we need not recite the underlying facts
    or procedural history of this case in detail. However, we will briefly summarize the
    evidence in assessing the claim that the evidence was not sufficient to prove Smith’s guilt
    beyond a reasonable doubt.
    I. Jury Composition
    Because Smith failed to timely object to the composition of the jury pool, the
    District Court properly rejected Smith’s request to “re-shuffle” the venire during jury
    selection. Even absent this procedural deficiency, Smith has failed to establish a prima
    facie case for his challenge to the jury composition.
    The appropriate time for challenging the composition of a jury pool in a criminal
    trial is “before the voir dire examination begins, or within seven days after the defendant
    discovered or could have discovered, by the exercise of diligence, the grounds therefore,
    whichever is earlier . . . .” 
    28 U.S.C. § 1867
    (a), (e). Smith did not object to the method of
    jury selection until well after jury selection had begun, and there was no additional
    information available to Smith after completion of voir dire that was not available to him
    prior to trial. Thus, Smith did properly assert his “cross section” argument. Moreover,
    the claim is meritless.
    The law only assures that the randomly-selected group of citizens from which
    1
    The District Court had jurisdiction pursuant to 
    18 U.S.C. § 3231
    . We have jurisdiction
    pursuant to 
    28 U.S.C. § 1291
    ; we may review the reasonableness of the sentence pursuant to 
    18 U.S.C. § 3742
    .
    2
    jurors are selected represent a fair cross section of the community. It does not provide a
    right to any particular jury composition or ratio. Taylor v. Louisiana, 
    419 U.S. 522
    , 538
    (1975). In Duren v. Missouri, 
    439 U.S. 357
     (1979), the Supreme Court explained that a
    defendant who seeks to establish a violation of the fair cross section requirement for jury
    composition must establish:
    (1) that the group alleged to be excluded is a “distinctive” group in the community;
    (2) that the representation of this group in venires from which juries are selected is
    not fair and reasonable in relation to the number of such persons in the community;
    and
    (3) that this underrepresentation is due to systematic exclusion of the group in the
    jury-selection process.
    
    Id. at 364
    . Statistical evidence establishing the disparity between a group’s representation
    in the jury pool and the percentage of the community composed of the group allegedly
    underrepresented in the jury pool must usually be presented to satisfy the Duren test.
    United States v. Weaver, 
    267 F.3d 231
    , 240 (3d Cir. 2001). That “competent statistical
    evidence” should be based on an examination of jury selection practices in a district over
    a prolonged period of time. 
    Id. at 236
    . Smith has not even attempted to satisfy that
    requirement.2
    II. Sufficiency of the Evidence
    2
    Moreover, we note that the plan employed by the Eastern District of Pennsylvania to
    select jurors using voter registration lists has been repeatedly affirmed, and Smith does not
    directly challenge the jury selection method used by the district. See, e.g., United States v.
    Mortimer, 
    1999 WL 504560
    , at *2 (E.D. Pa. July 14, 1999); United States v. Ortiz, 
    897 F.Supp. 199
    , 204 (E.D. Pa. 1995). We have affirmed the validity of jury selection procedures using voter
    registration and motor vehicle records as procedures “constituted using facially neutral criteria
    [that] allow no opportunity for subjective or racially motivated judgments.” Ramseur v. Beyer,
    
    983 F.2d 1215
    , 1233 (3d Cir. 1992).
    3
    Smith argues that the sufficiency and weight of the evidence was insufficient to
    support his conviction on all of the charges. The assertion is frivolous. The victim
    testified that Smith pointed a gun at him as Smith ordered the victim out of his car. The
    victim stated that he thought Smith would shoot him and was thus in fear for his life.
    Smith then drove away in the victim’s car. Unfortunately for Smith, when the police
    found the victim’s car, Smith was driving it. Smith got out and attempted to run away.
    In the process police saw him throw the gun and the victim’s wallet to the ground. While
    still at the scene of the incident, the victim positively identified Smith as the carjacker.
    Smith stipulated at trial that he had been a convicted felon at the time of his arrest.
    We review the sufficiency of the evidence in the light most favorable to the
    government as verdict winner. See United States v. Stanisfield, 
    101 F.3d 909
    , 911 (3d
    Cir. 1996). We sustain the conviction if the evidence so viewed would allow “any
    rational trier of fact [to] have found the essential elements of the crime beyond a
    reasonable doubt” United States v. Dent, 
    149 F.3d 180
    , 187 (3d Cir. 1998) (quoting
    United States v. Voight, 
    89 F.3d 1050
    , 1080 (3d Cir. 1996)) (quotation marks and citation
    omitted).
    Because Smith failed to file timely motions either for a judgment of acquittal under
    Federal Rule of Criminal Procedure 29 or for a new trial under Rule 33, we review the
    sufficiency of the evidence under a plain error standard. See United States v. Powell, 
    113 F.3d 464
    , 466-67 (3d Cir. 1997). To establish plain error Smith must show that (1) the
    court erred, (2) the error was “plain,” and (3) the error affected substantial rights that
    4
    would affect the outcome of the proceedings. Johnson v. United States, 
    520 U.S. 461
    ,
    467 (1997).
    It is obvious that the evidence here is more than sufficient to establish each of the
    elements of 
    18 U.S.C. § 2119
     (carjacking) beyond a reasonable doubt, and Smith’s
    arguments to the contrary to not merit discussion.3 The same is true of his Smith’s
    challenge to his conviction for using and carrying a firearm during a crime of violence in
    violation of 
    18 U.S.C. § 924
    ,4 and unlawful possession of a firearm in violation of 18
    3
    Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle
    that has been transported, shipped, or received in interstate or foreign commerce from
    the person or presence of another by force and violence or by intimidation, or
    attempts to do so, shall –
    (1) be fined under this title or imprisoned not more than 15 years, or both,
    (2) if serious bodily injury . . . results, be fined under this title or imprisoned not more
    than 25 years, or both, and
    (3) if death results, be fined under this title or imprisoned for any number of years up
    to life, or both, or sentenced to death.
    
    18 U.S.C. § 2119
    ; see United States v. Lake, 
    150 F.3d 269
    , 272 (3d Cir. 1998) (“Under the
    carjacking statute, 
    18 U.S.C. § 2119
    , the prosecution must prove that the defendant (1) ‘with
    intent to cause death or serious bodily harm’ (2) took a motor vehicle (3) that had been
    ‘transported, shipped, or received in interstate or foreign commerce’ (4) ‘from the person or
    presence of another’ (5) ‘by force and violence or by intimidation.’”).
    4
    Except to the extent that a greater minimum sentence is otherwise provided by this
    subsection or by any other provision of law, any person who, during and in relation to
    any crime of violence or drug trafficking crime (including a crime of violence or drug
    trafficking crime that provides for an enhanced punishment if committed by the use
    of a deadly or dangerous weapon or device) for which the person may be prosecuted
    in a court of the United States, uses or carries a firearm, or who, in furtherance of any
    such crime, possesses a firearm, shall, in addition to the punishment provided for
    such crime of violence or drug trafficking crime -
    (I) be sentenced to a term of imprisonment of not less than 5 years;
    (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less
    
    5 U.S.C. § 922
    (g)(1).5
    Smith asks that his convictions be reversed because testimony at trial “could not
    have been truthful.” Appellant’s Br. at 7. He provides two bases for the supposed lack of
    credibility of the victim’s testimony, neither of which has any merit. Smith questions
    whether someone who supposedly knew little about firearms could “guess” that the gun
    used during the carjacking was a nine millimeter. Smith also challenges the victim’s
    assertion that he had not seen Smith before. Smith fails to provide any reference to the
    record that would indicate that this testimony was untruthful. Smith also fails to explain
    why this testimony was false or inconsistent.6 Instead, Smith makes the unsupported and
    conclusory claim that “the incredible tales told by the government’s witness rise to a level
    than 7 years;
    (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less
    than 10 years.
    
    18 U.S.C. § 924
    (c)(1)(A); see Bailey v. United States, 
    516 U.S. 137
    , 142-43 (1995) (outlining
    the elements of a 
    18 U.S.C. § 924
     charge).
    5
    It shall be unlawful for any person –
    (1) who has been convicted in any court of a crime punishable by imprisonment for a
    term exceeding one year; . . .
    to ship or transport in interstate or foreign commerce, or possess in or affecting
    commerce, any firearm or ammunition; or to receive any firearm or ammunition
    which has been shipped or transported in interstate or foreign commerce.
    
    18 U.S.C. § 922
    (g).
    6
    Common sense would allow the jury to conclude that exposure to televison and other
    sources of information was sufficient to allow the victim to claim that the gun was a nine
    millimeter; perhaps simply based on the realization that it wasn’t a revolver.
    6
    far beyond inconsistency.” Appellant’s Br. at 8. Despite the hyperbole, he has not
    demonstrated any error, let alone the plane error that is required.
    III. Prior Convictions and the Sentence.
    Smith argues that the court erred in calculating the sentencing range under the
    guidelines because “[T]he majority of [his] prior convictions were not proven to a jury
    beyond a reasonable doubt, thus violating Apprendi,”7 and because the sentence was
    unreasonable. The first part of that argument can readily be dismissed based upon our
    subsequent ruling in United States v. Grier, 
    475 F.3d 556
     (3d Cir. 2007) (en banc).8
    Smith’s challenge to the reasonableness of the sentence also lacks merit.
    Smith has the burden of establishing that his sentence was unreasonable. United
    States v. Booker, 
    543 U.S. 220
    , 261 (2005); United States v. Cooper, 
    437 F.3d 324
    , 330
    (3d Cir. 2006). In determining an appropriate sentence, the sentencing court must
    consider the factors set forth in 
    18 U.S.C. § 3553
    (a). We assess whether the sentencing
    court’s application of the § 3553(a) factors to the circumstances of the case was
    reasonable. Cooper, 
    437 F.3d at 330
    . A sentence within the guidelines range is more
    likely to be considered “reasonable” than one outside the range, 
    id. at 331
    , although a
    guidelines sentence is not per se reasonable.
    Here, the District Court expressly considered the factors in Section 3553(a) as set
    7
    Appellant’s Br. at ii. See Apprendi v. New Jersey, 
    530 U.S. 466
     (2000).
    8
    Smith candidly admits that the argument is made merely to preserve the record given
    the “rapidly- evolving sentencing law. . ..” Appellant’s Br. at 9.
    7
    forth in Booker. App. 79. The court noted Smith’s prior violent criminal history,
    including two prior convictions for robberies committed with a firearm, his history of
    violating the conditions of parole and probation, and his having been out of prison for
    only six months when he committed the instant offense. Moreover, and perhaps not
    surprisingly given his criminal history, Smith expressed no remorse for his criminal
    actions. The District Court could find no mitigating circumstances that might suggest a
    lesser sentence of imprisonment prison was warranted; neither can we.
    VI.
    For the reasons stated above, we will affirm the conviction and sentence.
    8