United States v. Smith , 237 F. App'x 732 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-22-2007
USA v. Smith
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3675
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Recommended Citation
"USA v. Smith" (2007). 2007 Decisions. Paper 895.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3675
UNITED STATES OF AMERICA
v.
TRINA SMITH
Trina R. Smith,
Appellant
On Appeal From the United States
District Court
For the Middle District of Pennsylvania
(D.C. Crim. Action No. 04-cr-00069)
District Judge: Hon. Christopher C. Conner
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 15, 2007
BEFORE: McKEE, STAPLETON and NYGAARD,
Circuit Judges
(Opinion Filed: June 22, 2007)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Trina Smith pled guilty to one count of unlawful distribution of crack
cocaine. She was sentenced to 110 months of imprisonment, a $100 assessment, and
three years of supervised release. Because she suffers from end-stage renal failure and
undergoes kidney dialysis three times a week, she is serving her sentence at the Federal
Medical Center in Carlswell, Texas, as requested by the District Court.
At the sentencing hearing, the District Court determined, based on Smith’s
admissions during the guilty plea colloquy, that she had sold two ounces, or 56.7 grams,
of cocaine base in 2004. It therefore properly determined that Smith’s Base Offense
Level was 32. A three-point credit for acceptance of responsibility reduced this to 29.
Because of two prior controlled substance felony convictions, Smith qualified as a career
offender and her Criminal History Category of VI. The government filed a motion for a
downward departure pursuant to U.S.S.G. § 5K1.1 based on her cooperation, and the
Court agreed that a five-level reduction was appropriate. Based on a base offense level of
24 and a Criminal History Category of VI, the Guideline range was determined to be 100
to 125 months. After considering this range and the factors set forth in 18 U.S.C. §
3553(a), the District Court determined that 110 months of incarceration was a reasonable
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sentence for Smith’s crime.
In this appeal, Smith’s appellate counsel filed a brief, an appendix, and a motion to
withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). In that brief,
he examined in some detail whether Smith’s sentence was reasonable and whether trial
counsel had rendered effective assistance of counsel, reaching an affirmative conclusion
in each instance. In addition, Smith filed a pro se informal brief raising a number of
additional issues and asking that we overturn her conviction as well as her sentence.
We agree, essentially for the reasons explained in the brief of Smith’s counsel, that
the sentence imposed by the District Court was clearly a reasonable one. The District
Court correctly determined the Guideline offense level and Criminal History Category
and, appropriately applying the relevant facts, determined that Smith was entitled to a
five-level reduction for her cooperation. Having thus properly determined the Guideline
range, the District Court expressly recognized its advisory character and proceeded to
consider the § 3553(a) factors before exercising its discretion to determe a reasonable
sentence within the Guideline range.1
1
We note that this case does not present the issue we addressed in United States v.
Gunter, 462 F.3d 237 (3d Cir. 2006). We there held that a District Court erred when, in
response to an argument that it should impose a sentence in a crack distribution case
below the Guideline range based on the Guideline differential between crack and powder
cocaine, it found it had no discretion to do so. Smith did not advance such an argument
before the District Court, and there is no record basis for believing that the District Court
believed it lacked such discretion. To the contrary, the District Court expressly affirmed
that all aspects of the Guidelines were advisory and subject to its discretion under §
3553(a), including its discretion with respect to “the nature of the offense.”
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We agree with the government that this is not one of those very rare cases in which
an ineffective assistance of trial court counsel claim can appropriately be addressed on
direct appeal. Our affirmance of the judgment of the District Court will be without
prejudice to Smith’s raising her ineffective assistance of counsel claim in a habeas corpus
proceeding in the District Court in which an appropriate record can be developed.
Smith’s informal brief challenges the “subject matter and territorial jurisdiction” of
the District Court to hear the charge against her. The information in this case charges a
violation of a federal criminal statute, 21 U.S.C. § 841, which is alleged to have occurred
in Harrisburg. Accordingly, there can be no question about the jurisdiction of the United
States District Court for the Middle District of Pennsylvania to hear the charge against
Smith. The many other, non-jurisdictional arguments raised in the pro se brief were
waived by Smith’s guilty plea.
The judgment of the District Court will be affirmed without prejudice to Smith’s
raising her ineffective assistance of counsel claim in a habeas corpus proceeding in the
District Court. Counsel’s motion to withdraw will be granted.
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