United States v. Smith , 361 F. App'x 446 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DACIOUS LAMONT SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:08-cr-00045-F-1)
Submitted: December 17, 2009 Decided: December 28, 2009
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dacious Lamont Smith pled guilty, without a plea
agreement, to conspiracy to distribute and possess with intent
to distribute at least five grams of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), 846 (2006), using and carrying a
firearm during and in relation to, and possessing the firearm in
furtherance of, a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2006), and possessing a firearm after having
been convicted of a crime punishable by more than one year of
imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006). On
appeal, he argues that the district court’s imposition of a
sentence of 131 months of imprisonment was not reasonable, and
that his sentence must be vacated and remanded for resentencing
pursuant to the Supreme Court’s decisions in Nelson v. United
States, 129 S. Ct. 890 (2009), and Spears v. United States, 129
S. Ct. 840 (2009). We affirm.
Smith does not assert any specific error committed by
the district court in selecting his sentence, but argues that
the factors in 18 U.S.C. § 3553(a) (2006) supported a sentence
at the mandatory minimum term of 120 months of imprisonment. We
review a sentence for reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
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Id. After determining whether the district court properly
calculated the defendant’s advisory guidelines range, this court
must then consider whether the district court considered the
factors in 18 U.S.C. § 3553(a) (2006), analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Id.; United States v. Carter, 564 F.3d 325,
330 (4th Cir. 2009). Finally, we review the substantive
reasonableness of the sentence. United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007).
Our review of the record leads us to conclude that the
district court committed no procedural error in this case.
Turning to the substantive reasonableness of the sentence, this
court presumes that a sentence imposed within the properly
calculated guidelines range is reasonable. Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Smith, 566
F.3d 410, 414 (4th Cir. 2009). Applying the presumption of
reasonableness to Smith’s within-guidelines sentence, which
Smith fails to rebut on appeal, we find that the district court
did not abuse its discretion in imposing a 131-month sentence.
Thus, the sentence is reasonable.
At the time Smith was sentenced, the Supreme Court had
decided in Kimbrough v. United States, 552 U.S. 85 (2007), that
courts are permitted to vary downward from a sentencing range
based on the Sentencing Guidelines’ 100-to-1 cocaine base to
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cocaine powder sentencing ratio if the resulting sentence under
the Guidelines would be greater than necessary to achieve the
objectives set forth in § 3553(a). Id. at 110-11. The decision
in Spears expanded upon Kimbrough’s holding by clarifying “that
the district courts are entitled to reject and vary
categorically from the crack-cocaine Guidelines based on a
policy disagreement with those Guidelines.” Spears, 129 S. Ct.
at 843-44. Nelson did not address Kimbrough, but held that the
presumption of reasonableness accorded to a within-Guidelines
sentence is an appellate presumption that may not be considered
by the district court in selecting a sentence. Nelson, 129 S.
Ct. at 892. In this case, there is no indication that the
district court did not realize its discretion to select a lower
sentence based on the crack-powder disparity, and the district
court did not presume the Guidelines sentencing range to be
reasonable. Thus, we conclude that this argument is without
merit.
We therefore affirm Smith’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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