United States v. Smith , 337 F. App'x 362 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4815
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT DAWAYNE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:07-cr-00580-AMD-1)
Submitted: June 23, 2009 Decided: July 10, 2009
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher Flohr, BLACKFORD & FLOHR, LLC, Severna Park,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Cheryl L. Crumpton, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Dawayne Smith was convicted of possession of a
firearm by a convicted felon and sentenced to the statutory
mandatory minimum sentence of 180 months imprisonment. On
appeal, Smith challenges both his conviction and sentence. We
affirm.
I.
Smith first asserts that the district court erred in
denying his motion for a mistrial based on the untimely
disclosure of a police report. According to Smith, his theory
of the defense was that the police did not do a thorough
investigation to determine the owner of the firearm at issue,
and counsel spoke in his opening argument about that fact that,
of all the police officers involved, only Officer Mezan created
a report. Smith’s counsel highlighted this fact in attempting
to create a picture of lackadaisical police procedure. Thus,
Smith asserts that counsel’s credibility was “irreparably
damaged” when a second police report authored by Mezan surfaced.
We review the denial of a motion for a mistrial for
abuse of discretion. United States v. Dorlouis, 107 F.3d 248,
257 (4th Cir. 1997) (stating that a district court’s ruling
denying a motion for a mistrial “will be disturbed only under
the most extraordinary of circumstances”). “In order for the
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trial court’s ruling to constitute such an abuse of discretion,
the defendant must show prejudice.” United States v. Dorsey, 45
F.3d 809, 817 (4th Cir. 1995). Reversal is required only if
there is a clear abuse of discretion and a “reasonable
possibility that the jury’s verdict was influenced” by the
error. United States v. Seeright, 978 F.2d 842, 849 (4th Cir.
1992). Because our review of the record clearly shows that
Smith cannot show any prejudice from the untimely production of
the second police report, his claim fails.
II.
Smith asserts that the court’s requirement that a
United States Marshal escort Smith to the bench during voir dire
was prejudicial, especially in the absence of a finding that
Smith was dangerous. Because Smith did not object below, the
issue is reviewed for plain error. To establish plain error,
the defendant must show that an error occurred, that the error
was plain, and that the error affected the defendant’s
substantial rights. United States v. Olano, 507 U.S. 725,
732-34 (1993); United States v. Massenburg, 564 F.3d 337, 342-43
(4th Cir. 2009) (stating defendant bears burden of establishing
each of the plain error requirements).
A court’s decision with regard to a security measure
is subject to limited review for abuse of discretion. See
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United States v. Samuel, 431 F.2d 610, 615 (4th Cir. 1970).
Here, the court’s requirement was apparently standard practice.
Moreover, the court offered Smith an accommodation, whereby he
could still participate in voir dire while remaining seated at
counsel table. Smith voluntarily chose to approach the bench,
ostensibly so that the jurors could view him at close range,
knowing that a Marshal would escort him. Especially given that
Smith had a lengthy criminal record and was in custody on a
firearm charge, we find no error in the district court’s
requirement, even in the absence of an explicit finding of
dangerousness. Further, even if the court’s decision was error,
due to the overwhelming evidence against Smith, he cannot show
that the error affected his substantial rights. Accordingly,
this claim is without merit.
III.
Smith asserts that evidence that the firearm was
manufactured in a different state and then transported to
Maryland was insufficient to establish the interstate nexus
element of the charge against him. However, as Smith concedes,
our precedent holds that such evidence is sufficient. See
United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001);
United States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997).
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IV.
Smith raises several conclusory challenges to the
predicate offenses used to establish his Armed Career Criminal
status. A defendant is an armed career criminal when he
violates 18 U.S.C. § 922(g)(1) (2006) and has three prior
convictions for violent felonies or serious drug offenses. 18
U.S.C. § 924(e)(1) (2006). Smith’s predicate convictions listed
in the presentence report (“PSR”) are as follows: (1) a
conviction for Conspiracy to Commit Robbery with Deadly Weapon,
(2) a conviction for Second Degree Assault, and (3) two
convictions for Manufacture, Distribution, or Dispensation of a
Controlled Dangerous Substance.
Smith first asserts that the two prior drug felonies
should not have been counted separately because they were
consolidated. However, it is undisputed that the offenses
occurred on different dates and were separated by an intervening
arrest. See U.S. Sentencing Guidelines Manual § 4A1.2 comment.
(n.3) (2007) (prior sentences are not related if offenses were
separated by intervening arrest). Further, the PSR provides no
indication that Smith’s convictions were consolidated for
sentencing, and Smith provides no evidence in this regard.
Absent formal consolidation, a single sentencing proceeding and
concurrent sentences do not make convictions related for
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criminal history purposes. United States v. Allen, 50 F.3d 294,
296-98 (4th Cir. 1995).
Next, Smith asserts that, because the two drug
offenses involved small amounts of drugs and money, they should
not have been considered “serious drug offenses” as defined by
the Armed Career Criminal Act (“ACCA”). A serious drug offense
under the ACCA is “an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . for
which a maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii) (2006). It is
undisputed that Smith’s predicate drug offenses satisfy this
definition; thus, the quantity of drugs or currency involved in
each offense is irrelevant.
Finally, Smith asserts that his misdemeanor assault
was not a “violent felony” because it resulted in a suspended
sentence. Smith is incorrect. The PSR shows that, rather than
a suspended sentence, Smith was sentenced to a year of
probation. Further, the relevant inquiry under the ACCA is the
maximum penalty to which the defendant was subject. Because it
is undisputed that Smith faced a maximum ten-year sentence on
the assault charge, it was properly characterized as a violent
felony. See United States v. Thomas, 2 F.3d 79, 81 (4th Cir.
1993).
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V.
Smith contends that the statutory mandatory minimum
was cruel and unusual punishment given that he had never been
given drug treatment and that his previous sentences were
significantly shorter. However, Smith recognizes that his
argument is not legally cognizable. “The Supreme Court has
never held that a sentence to a specific term of years, even if
it might turn out to be more than the reasonable life expectancy
of the defendant, constitutes cruel and unusual punishment.”
United States v. Khan, 461 F.3d 477, 495 (4th Cir. 2006).
Though “[s]evere, mandatory penalties may be cruel, . . . they
are not unusual in the constitutional sense.” Harmelin v.
Michigan, 501 U.S. 957, 994 (1991).
Based on the foregoing, we affirm Smith’s conviction
and 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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