Filed: Oct. 23, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4432 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK LASHAWN SMITH, a/k/a D-Love, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:04-cr-00047-nkm-17) Submitted: October 5, 2009 Decided: October 23, 2009 Before WILKINSON, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4432 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK LASHAWN SMITH, a/k/a D-Love, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:04-cr-00047-nkm-17) Submitted: October 5, 2009 Decided: October 23, 2009 Before WILKINSON, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4432
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK LASHAWN SMITH, a/k/a D-Love,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:04-cr-00047-nkm-17)
Submitted: October 5, 2009 Decided: October 23, 2009
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Frederick T. Heblich,
Jr., Assistant Federal Public Defender, Charlottesville,
Virginia, for Appellant. Julia C. Dudley, United States
Attorney, Ronald M. Huber, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Lashawn Smith appeals the eighteen-month
sentence he received when the district court found him guilty of
a Grade C violation of his supervised release. On appeal, Smith
asks this court to vacate the sentence because it is plainly
unreasonable. We reject Smith’s arguments and affirm his
sentence.
In 2005, a federal grand jury charged Smith and
sixteen other defendants with conspiracy to possess with intent
to distribute fifty grams or more of crack cocaine, five
kilograms or more of cocaine, and unspecified quantities of
heroin, PCP, and marijuana, in violation of 21 U.S.C. §§ 841(a),
846 (2006), and conspiracy to participate in a Racketeer
Influenced Corrupt Organization (“RICO”), in violation of 18
U.S.C. § 1962(d) (2006). Smith pled guilty to the RICO charge.
Smith’s sentencing range under the advisory Sentencing
Guidelines was 324-405 months’ imprisonment. Upon the
Government’s motion, the court departed downward from this range
because Smith had substantially assisted the Government, and
sentenced Smith to twenty-four months’ imprisonment and three
years’ supervised release. In May 2008, Smith’s sentence was
reduced to nineteen months, as a result of his 18 U.S.C.
§ 3582(c)(2) (2006) motion based on the crack cocaine amendment
to the Sentencing Guidelines.
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On August 26, 2008, Smith began his supervised release
term. Less than four months later, on December 11, 2008, Smith
was arrested and charged with possession of marijuana and
driving with a suspended license. Smith’s probation officer
filed a violation report based on this conduct, classifying it a
Grade C violation. U.S. Sentencing Guidelines Manual (“USSG”)
§ 7B1.1(a)(3), p.s. (2008). This, combined with Smith’s
category V criminal history, resulted in a policy statement
range of 7-13 months’ imprisonment. USSG § 7B1.4(a), p.s.
Because the original conviction was a Class A felony, the
statutory maximum term of imprisonment for the violation was
sixty months. See 18 U.S.C. §§ 1963(a), 3559(a)(1), 3583(e)(3)
(2006); 21 U.S.C. § 841(b)(1)(A)(ii), (iii) (2006).
At the revocation hearing, the Government argued for
an upward departure from the policy statement range because
Smith’s original sentence resulted from a downward departure.
Although Smith conceded the violation, he asked the court to
consider certain facts that he maintained mitigated the severity
of the violation, including that the offense involved a very
small amount of marijuana; that Smith had not failed a drug
test; that Smith had cooperated with his probation officer; and
that Smith was pursuing a GED and taking steps to have his
driver’s license reinstated. In addition to this proffer by
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counsel, Smith’s uncle testified that he would offer Smith full-
time employment if Smith were released.
The district court found Smith guilty of the violation
and sentenced him to eighteen months’ imprisonment. The court
explained this was “an upward departure based on the substantial
5K motion that he received on the underlying offense.”
On appeal, Smith contends the district court failed to
adequately explain the basis for its decision to depart upward
from the policy statement range, and argues that his sentence is
plainly unreasonable, both procedurally and substantively.
We will affirm a sentence imposed after revocation of
supervised release if it is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). The
sentence first must be assessed for reasonableness, “follow[ing]
generally the procedural and substantive considerations that we
employ in our review of original sentences, . . . with some
necessary modifications to take into account the unique nature
of supervised release revocation sentences.”
Id. at 438-39; see
United States v. Finley,
531 F.3d 288, 294 (4th Cir. 2008) (“In
applying the ‘plainly unreasonable’ standard, we first
determine, using the instructions given in Gall [v. United
States, 128 S. Ct. 586, 597 (2007)], whether a sentence is
‘unreasonable.’”).
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Upon finding a revocation sentence is not
unreasonable, we will affirm the sentence. Crudup, 461 F.3d at
439. Only if a sentence is found procedurally or substantively
unreasonable will this court “decide whether the sentence is
plainly unreasonable.” Id.; see
Finley, 531 F.3d at 294.
Although the district court must consider the Chapter 7 policy
statements and the requirements of 18 U.S.C. §§ 3553(a), 3583
(2006), “the [district] court ultimately has broad discretion to
revoke its previous sentence and impose a term of imprisonment
up to the statutory maximum.”
Crudup, 461 F.3d at 439 (internal
quotation marks and citations omitted).
Smith’s challenge to the procedural reasonableness of
his sentence lacks merit. The district court articulated a
reason for its upward departure: that Smith had previously
received a significant downward departure. As Application Note
4 to USSG § 7B1.4, p.s., specifically contemplates a departure
on this very basis, and the Government made the court aware of
this and the extent of the court’s previous downward departure,
we find this explanation was sufficient. “[A] court’s statement
of its reasons for going beyond non-binding policy statements in
imposing a sentence after revoking a . . . supervised release
term need not be as specific as has been required when courts
departed from guidelines.” Crudup, 461 F.3d at 439 (internal
quotation marks, citation, and emphasis omitted).
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Smith next asserts that his sentence is substantively
unreasonable because the district court failed to provide a
sufficient explanation for the eighteen-month term and the term
was greater than necessary. According to Smith, the court heard
testimony and proffer that weighed against an upward departure,
but did not specifically address any of those facts prior to
imposing the departure sentence. Thus, Smith maintains, the
sentence is substantively unreasonable.
Consideration of the substantive reasonableness of a
sentence requires an assessment of the totality of circumstances
underlying the sentence, including the extent of any variance
from the Guidelines range. United States v. Abu Ali, 528 F.3d
210, 261 (4th Cir. 2008). While Smith is correct that the
district court did not address the facts that he argued in
support of a within-policy range sentence, this omission does
not render the sentence substantively unreasonable. It is
apparent the district court determined that the considerations
advanced by Smith were simply insufficient to overcome the
single reason advanced for the upward departure: that, although
Smith’s twenty-four month sentence was the product of a 93%
reduction from the bottom of his original guideline range, less
than four months after his release from that sentence, Smith
violated the terms of his supervised release. This violation
was a plain breach of the court’s trust, see
Crudup, 461 F.3d at
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437-38, and in light of that breach, the district court
exercised its discretion to depart upward from the policy
statement range of seven to thirteen months’ imprisonment to
sentence Smith to a term of eighteen months. This departure is
modest in light of the totality of the circumstances, and is
well within the five-year statutory maximum.
For the foregoing reasons, we find the sentence
imposed was reasonable and thus affirm the district court’s
judgment. 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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