NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                   No. 08-1381


                          UNITED STATES OF AMERICA

                                        v.

                             CHRISTOPHER SMITH,
                                    a/k/a
                                  JUGHEAD

                                Christopher Smith,
                                                     Appellant


                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                       D.C. Criminal No. 02-cr-00172-026
                           (Honorable Stewart Dalzell)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 1, 2010

            Before: SCIRICA, STAPLETON and ROTH, Circuit Judges.

                              (Filed: July 15, 2011)




                            OPINION OF THE COURT


SCIRICA, Circuit Judge.
      Christopher Smith appeals his sentence imposed on remand under United States v.

Booker, 

(2005). We will affirm.

                                            I.

      In 2002, a grand jury in the Eastern District of Pennsylvania indicted thirty-six

defendants with conspiracy to distribute more than five kilograms of cocaine and more

than fifty grams of cocaine base (“crack”). Defendant Christopher Smith was part of the

Courtney Carter organization, consisting of many members who distributed controlled

substances, including cocaine and crack, in Pennsylvania, Delaware, and other locations.

Between 1997 and 2002, the conspiracy distributed more than 600 kilograms of cocaine

and more than 400 kilograms of crack with gross revenues that exceeded $24,000,000.

      The drug conspiracy occasioned numerous acts of violence including a murder.

Smith was a “hustler” working various street corners and also a “gun” or enforcer,

protecting the corners from rival drug organizations. There were several violent acts and

in 1999-2000 co-conspirators, including Smith, engaged in a turf war with another drug

organization known as “Zip World” or “Zipnicks.” On at least three occasions, the two

gangs exchanged gunfire. In January 2000, Smith and a co-conspirator shot and killed

Grayling Craig, a member of the rival organization. In February 2000, Smith and co-

conspirators exchanged gunfire with the rival gang and a bystander was wounded.

      On January 30, 2004, a jury convicted Christopher Smith of conspiracy to distribute

cocaine and cocaine base, in violation of 21 U.S.C. § 846 and § 841(a)(1), and of the use



                                             2
of a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. §

924(c). The jury, through special interrogatories, found Smith and his co-conspirators

responsible for distribution of more than five kilograms of cocaine and fifty grams of

cocaine base. The District Court adopted the Presentence Investigation Report, Addenda

and Update 1 which designated a base offense level of 38 under § 2D1.1(c)(1). Under §

2D.1(d)(1) and in view of the fact that Grayling Craig was killed under circumstances that

would constitute murder under 18 U.S.C. § 111, the court found § 2A1.1 applied, raising

the base offense level to 43. In addition, the court found there was evidence at trial of

Smith’s repeated attempts to obstruct justice by intimidating the government’s cooperating

witnesses. Consequently, the court raised the base offense level two points to 45 2 under §

3C1.1. Smith’s total offense level of 45 and his criminal history category of III resulted in

a guideline sentence of life imprisonment. The court imposed a life sentence on Count

One and an additional thirty years’ imprisonment consecutive to the sentence on Count

One (a five-year mandatory consecutive sentence on Count 119, and a 25-year mandatory

consecutive sentence on Count 121). Smith appealed his sentence.

   1
    The PSR determined Smith was responsible for distribution of more than 1.5
kilograms of powder cocaine and more than 150 kilograms of crack. The guidelines
specify these quantities have the marijuana equivalent of 60,000 kilograms. It also
determined that the base offense level for a conspiracy to distribute cocaine was 38.
Based on an offense level of 38 and a criminal history category of III, for Count One, it
determined that the guideline range was 292 to 365 month in prison. The maximum
statutory term of imprisonment was life with a mandatory minimum of ten years.
   2
    An offense level of more than 43 is treated as an offense level of 43 under the
guidelines.

                                              3
       We affirmed his convictions on all three counts and affirmed the sentences imposed

on Counts 119 and 121 (mandatory consecutive terms of five years and twenty-five years

respectively). We vacated the life sentence on Count One and remanded for resentencing

under the advisory guidelines set forth in Booker. See United States v. Smith, 252 Fed.

App’x 431 (3d Cir. 2007).

       On remand, the District Court acknowledged it had the discretion to vary

downwards under Booker but chose not to do so. The court, noting the offenses at issue

involved a murder and threats to government witnesses, found Smith was a “dangerous,

remorseless offender.” Additionally, the court “credited” two intervening murder

convictions, resulting in a criminal history category of VI. The court again sentenced

Smith to life imprisonment on Count One.

                                             II.

       Smith contends the District Court violated his Due Process and Sixth Amendment

rights when it determined by a preponderance of the evidence: a) that he committed

murder; b) that he obstructed justice; and c) the specific amount of drugs involved in the

crime. Smith argues this was both a trial error, as the facts were not submitted to the jury,

and a sentencing error, as the trial court calculated Smith’s sentence under the guidelines

using facts not found by the jury.

       In Booker, the Supreme Court rendered the sentencing guidelines 

. Post-Booker, a trial judge has discretion to sentence in light of the



                                              4
statutory maximum and statutory minimum provisions and the sentencing factors listed in

18 U.S.C. § 3553(a). See United States v. Grier, 

, 567-68, 571 (3d Cir. 2006)

(en banc).

       The failure to submit the disputed facts to the jury was not error. We reviewed a

similar question en banc in Grier. The question in Grier was whether the Due Process

Clause required a jury (or judge at a bench trial) to determine beyond a reasonable doubt

facts relevant to sentencing guidelines enhancements, particularly those constituting a

separate offense. 

Judicial fact-finding in applying advisory sentencing

guidelines does not conflict with the defendant’s right to a jury trial and the requirement of

proof beyond reasonable doubt under the Fifth and Sixth Amendment so long as he has

been convicted beyond a reasonable doubt of the predicate facts of unlawful conduct,

“triggering a statutory maximum penalty.” 

The guidelines (and possible

enhancements) do not increase the maximum punishment to which the defendant is

exposed, but rather inform the judge’s discretion as to the proper sentence within the

statutory minimum and statutory maximum sentences. Accordingly, facts relevant to

application of the guidelines are not elements of a crime and do not trigger the rights

recognized in Apprendi v. New Jersey, 

(2000). 

.

       The District Court did not err by sentencing Smith to life imprisonment. Under 21

U.S.C. § 841, the statutory maximum sentence to which a defendant is exposed is life

when the offense involves more than five kilograms of powder cocaine. 21 U.S.C. §



                                              5
841(b)(1)(A). The jury found Smith violated 21 U.S.C. § 846 and that the offense

involved more than five kilograms of powder cocaine and more than fifty grams of

cocaine base. The District Court imposed a sentence equivalent to the maximum statutory

penalty authorized by the jury’s verdict. The court did not violate Smith’s Due Process and

Six Amendment rights at trial when facts relevant to application of the sentencing

guidelines were not submitted to the jury.

       Smith similarly argues that use of facts not found by the jury at sentencing was

error. Because the jury did not need to make specific findings on these facts to subject

him to a maximum penalty of life imprisonment, the trial court was permitted to find such

facts at sentencing.

                                             III.

       Smith also contends the court erred by increasing his criminal history category from

III to VI at resentencing as a result of two intervening murder convictions. We generally

review sentencing decisions for abuse of discretion. Gall v. United States, 

, 51

(2007). But as Smith did not object,3 we review for plain error under Fed. R. Crim. P. 52

(b). See United States v. Olano, 

, 732 (1993). To find plain error, there 1)

must be an error, 2) the error must be “plain” (a term synonymous with “clear” or




   3
   At resentencing, Smith’s counsel responded to the District Court’s inquiry about this
change in his criminal history, “no problems, your Honor, as to the convictions.”

                                              6
“obvious”), and 3) the error must “affect substantial rights” (meaning that the error must

be prejudicial, affecting the outcome of the district court proceedings). 

Court did not commit error, let alone plain error, when it increased

Smith’s criminal history category from III to VI. The court correctly applied the

sentencing guidelines and 18 U.S.C. § 3553(a). Under U.S.S.G. § 4A1.2(a)(1), Smith’s

additional homicide convictions added points to raise his criminal history category.4

Congress has directed “[n]o limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of imposing an appropriate

sentence.” 18 U.S.C. § 3661. When considering whether a defendant’s post-conviction

rehabilitation should be considered at resentencing, the Supreme Court recently noted the

“plain language of § 3661 makes no distinction between a defendant's initial sentencing

and a subsequent resentencing after a prior sentence has been set aside on appeal.” Pepper

v. United States, --- U.S. ----, 

, 1241 (2011). In Pepper, the Court held that

the District Court was not bound by a prior calculation of the sentencing guidelines when


   4
       The Guidelines application notes define “Prior sentencing” as:

          a sentence imposed prior to sentencing on the instant offense, other than a
          sentence for conduct that is part of the instant offense. A sentence imposed
          after the defendant’s commencement of the instant offence, but prior to
          sentencing on the instance offence, is a prior sentence if it was for conduct
          other than conduct that was part of the instant offense.

U.S.S.G. § 4A1.2 cmt. n.1.

                                                7
imposing a new sentence de novo following a Booker remand. 

We find no

error, let alone plain error, when on remand the court applied the sentencing factors in 18

U.S.C. § 3553(a) (requiring consideration of the defendant’s history and applicable

sentencing guidelines, among other factors) by taking into account the intervening

convictions for murder.

                                             IV.

       Finally, Smith alleges a violation of the Cruel and Unusual Punishment Clause

because the sentence was not reasonable. We review the reasonableness of a sentence in

light of the sentencing factors articulated in § 3553(a). United States v. King, 

, 194 (3d Cir. 2006). Our review under the Eight Amendment is guided by factors

such as the seriousness of the offense and harshness of the penalty in light of sentences in-

and outside of the jurisdiction, with primary emphasis on relationship between the

seriousness of the offense and harshness of the penalty. United States v. Walker, 

, 81-82 (3d Cir. 2007).

       We reject Smith’s contention that the sentence of life imprisonment for

participating in a massive drug conspiracy involving the murder of a rival drug dealer and

the shooting of an innocent bystander is cruel and unusual or unreasonable. The court

took into account the seriousness of the crime, potential range of penalties, and Smith’s

personal characteristics including his extensive criminal history and his participation in at




                                              8
least three murders. We see no procedural or substantive error in the sentence. The

sentence was reasonable.




                                           V.

      For the foregoing reasons, we will affirm the judgment of conviction and sentence.




                                            9