United States v. Smith, Virgil , 182 F. App'x 586 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Decided June 1, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-1771
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Northern District of Indiana,
v. Fort Wayne Division.
VIRGIL SMITH, No. 1:03-CR-6
Defendant-Appellant.
Theresa L. Springmann, Judge.
ORDER
Virgil Smith was convicted by a jury of one count of aiding and abetting an armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2, and one count of aiding and
abetting in the use of a firearm, during and in relation to the bank robbery, in violation of 18 U.S.C.
§ 924(c) and 18 U.S.C. § 2. Relying on the Sentencing Guidelines, the district court sentenced Smith
to 137 months’ imprisonment (the top of the applicable Guidelines range) on the first count, and a
mandatory consecutive term of 84 months on count two, for a total sentence of 221 months’
imprisonment. In United States v. Smith, 415 F.3d 682 (7th Cir. 2005), we ordered a limited remand
of the 137-month portion of Smith’s sentence in accordance with United States v. Booker, 125 S.
Ct. 738 (2005), and United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), so that the district court
could determine whether it believed that this portion of the sentence remains appropriate now that
Booker has relegated the Sentencing Guidelines to advisory status. (The court had no discretion over
the mandatory 84-month component of the sentence.) In all other respects, we affirmed the judgment
No. 04-1771 Page 2
of the district court.
The district court has replied that it would reimpose the same sentence, now that it knows
that the Guidelines are advisory only. We invited both parties to file memoranda addressing the
reasonableness of Smith’s sentence. The government filed a statement urging us to find the sentence
reasonable and affirm. Smith’s counsel filed a statement “reincorporat[ing], by reference, all issues
heretofore raised in this matter,” but presenting no specific argument for why Smith’s sentence is
unreasonable. Smith has therefore failed to show why his properly-calculated sentence, which is
presumed reasonable under United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005), should not
stand, and our own review shows no such reason.
We therefore AFFIRM the sentence issued by the district court.