Filed: Apr. 09, 2010
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4146 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FREDERICK ALANDO SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00137-FL-1) Submitted: March 22, 2010 Decided: April 9, 2010 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNama
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4146 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FREDERICK ALANDO SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00137-FL-1) Submitted: March 22, 2010 Decided: April 9, 2010 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamar..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4146
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDERICK ALANDO SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00137-FL-1)
Submitted: March 22, 2010 Decided: April 9, 2010
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Andrea T. Stubbs, Assistant Federal Public Defenders, Raleigh,
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Unpublished opinions are not binding precedent in this circuit.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:
Frederick Alando Smith pled guilty to bank robbery, 21
U.S.C. § 2113(a) (2006), and was sentenced to ninety-five months
in prison. Smith appeals, contending that his sentence is
unreasonable. We affirm.
I
Smith’s base offense level was 20. See U.S.
Sentencing Guidelines Manual § 2B3.1(a) (2008). Two levels were
added because the property of a financial institution was taken,
see USSG § 2B3.1(b)(1), and three levels were subtracted for
acceptance of responsibility, see USSG § 3E1.1. Smith’s total
offense level was 19. He had eleven criminal history points,
placing him in criminal history category V. His advisory
Guidelines range was 57-71 months.
At sentencing, argument focused on the Government’s
motion for upward departure, in which the Government asked that
Smith be sentenced as a de facto career offender. The
Government observed that many of Smith’s offenses were too
remote to have been assigned criminal history points or were not
counted for other reasons. Those crimes included common law
robbery, assault with a deadly weapon inflicting serious injury,
misdemeanor assault, passing worthless checks (over twenty
counts), communicating threats, and possession of drug
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paraphernalia. The Government contended that criminal history
category V failed to adequately reflect the seriousness of
Smith’s past criminal conduct or the likelihood that he would
commit future crimes. Smith, through counsel, replied that a
sentence within the advisory Guidelines range would be
sufficient to satisfy sentencing purposes.
After hearing from counsel and inviting Smith to
speak, the district court concluded that a sentence outside the
advisory Guidelines range was appropriate, and sentenced Smith
to ninety-five months in prison. In pronouncing sentence, the
court specifically mentioned many of the 18 U.S.C. § 3553(a)
(2006) sentencing factors, including: the nature and
circumstances of the offense; the need to protect the public
from further crimes; the need to promote respect for the law;
and the need to deter further criminal conduct. The court
commented especially about Smith’s criminal history, which
included engaging in larceny over a twenty-four-year period.
These factors, the court found, warranted a sentence above the
advisory Guidelines range, but lower than the sentence advocated
by the Government. The court added that it had considered
imposing a sentence greater than ninety-five months. However,
mitigating circumstances, including Smith’s physical and mental
health, dissuaded the court from imposing a more severe
sentence.
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The court commented that it could arrive at a ninety-
five-month sentence another way: by granting the Government’s
departure motion. The court explained that, by following the
methodology set forth in the Guidelines, it would reach a
Guidelines range of 77-96 months and sentence Smith to ninety-
five months in prison.
II
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Seay,
553 F.3d 732,
742 (4th Cir.), cert. denied, 130 S. Ct. 127 (2009). Our
initial review is for “significant procedural error,” including
“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence--including an explanation for any deviation from the
Guidelines range.”
Gall, 552 U.S. at 51.
We next “consider the substantive reasonableness of
the sentence imposed.” Id. At this stage, we “take into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.”
Id. “If the
district court decides to impose a sentence outside the
4
Guidelines range, it must ensure that its justification supports
‘the degree of the variance.’” United States v. Evans, 526 F.3d
155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008)
(quoting
Gall, 552 U.S. at 51).
Our review of the record convinces us that Smith’s
ninety-five-month variant sentence was procedurally and
substantively reasonable. First, there were no significant
procedural errors in the sentence: the district court properly
calculated Smith’s advisory Guidelines range; considered the
§ 3553(a) factors; and explained that it was varying from the
Guidelines range because that range did not adequately account
for the nature and circumstances of the offense, Smith’s
criminal history, and the need to protect the public from
further financial crimes.
Additionally, the sentence is substantively
reasonable. The district court considered the parties’
arguments and supported the twenty-four-month upward variance
with a thoughtful analysis of relevant § 3553(a) factors.
Notably, the court discussed Smith’s extensive history of
larceny, the harm his crimes had caused, and his demonstrated
lack of respect for the law.
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III
Smith contends that his sentence was the result of an
upward departure under the Guidelines. See USSG § 4A1.3. He
takes issue with the methodology used by the district court in
calculating his departure sentence.
The district court offered two separate rationales for
imposing a sentence above Smith’s advisory Guidelines range:
(1) the § 3553(a) statutory factors; and (2) the Guidelines
departure provisions. In Evans, we stated:
[A]fter calculating the correct Guidelines range, if
the district court determines that a sentence outside
that range is appropriate, it may base its sentence on
the Guidelines departure provisions or on other
factors so long as it provides adequate justification
for the deviation. . . .
When . . . a district court offers two or more
independent rationales for its deviation, an appellate
court cannot hold the sentence unreasonable if the
appellate court finds fault with just one of these
rationales.
Id. at 164-65. Under Evans, because we have found Smith’s
variant sentence--imposed using the § 3553(a) factors--to be
procedurally and substantively reasonable, there is no need to
address the reasonableness of the same sentence under the
alternative rationale.
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IV
We accordingly affirm. 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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