U.S. v. Smith

• Decision Date: 17 February 2006
• Docket Number: No. 05-30313.,05-30313.
• Citation: 440 F.3d 704
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jamold SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

440 F.3d 704

UNITED STATES of America, Plaintiff-Appellee, v. Jamold SMITH, Defendant-Appellant.

No. 05-30313.

United States Court of Appeals, Fifth Circuit.

February 17, 2006.

Peter Michael Thomson, Asst. U.S. Atty. (argued), William P. Gibbens, New Orleans, LA, for U.S.

Robert F. Barnard, Asst. Fed. Pub. Def. (argued), Robin Elise Schulberg, Fed. Pub. Def., New Orleans, LA, for Smith.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Smith challenges his non-Guideline sentence of sixty months imprisonment. He argues that the district court's sentence based on his criminal history and parole status was unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth below, we find that the court's sentence was reasonable.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 11, 2004, two officers of the New Orleans Police Department were on patrol at the Guste Housing Development in New Orleans, Louisiana. They observed Jamold Smith ("Smith") running toward them, holding what appeared to be a pistol. After realizing that there were two police officers, Smith tossed the pistol and tried to flee. The officers recovered the fully loaded firearm with its handle wrapped in tape.

On October 21, 2004, Smith was indicted on one count of illegal possession of a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). On December 15, 2004, Smith pleaded guilty to the indictment. The district court, on March 16, 2005, sentenced him to sixty months imprisonment. The court found the presentence report ("PSR") to be "accurate and uncontested" and adopted the Guideline range of twenty-one to twenty-seven months of imprisonment.

Based on its finding that the applicable range did not adequately reflect Smith's criminal history or parole status at the time of the crime, the district court deviated¹ from the Guidelines and sentenced Smith to sixty months imprisonment. Specifically, the court found that the Guideline range did not adequately take into account Smith's (1) release on parole less than one month before the offense, (2) three narcotics convictions, and (3) three juvenile convictions—theft at age nine, trespass at age twelve, and possession of crack cocaine at age fourteen. Smith objected to the sentence, claiming that it was unreasonable, and timely filed this appeal.

II. STANDARD OF REVIEW

The district court's application of the Guidelines, even after Booker, is reviewed de novo. See United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005).² This Court accepts findings of fact made in connection with sentencing unless clearly erroneous. United States v. Creech, 408 F.3d 264, 270 n. 2 (5th Cir.2005); see United States v. Milton, 147 F.3d 414, 421 (5th Cir.1998).

Under United States v. Booker, we ultimately review a sentence for "unreasonableness." 125 S.Ct. at 765. Though flexible, the reasonableness standard is not unbounded. Both a district court's post-Booker sentencing discretion and the reasonableness inquiry on appeal must be guided by the sentencing considerations set forth in 18 U.S.C. § 3553(a). Booker, 125 S.Ct. at 766. Those factors include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed. . . medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines. . .;

(5) any pertinent policy statement . . .;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. . . .

18 U.S.C. § 3553(a) (2000).

Our post-Booker case law has recognized three different types of sentences under the advisory Guidelines regime. First, a sentencing court may exercise its discretion to impose a sentence within a properly calculated Guidelines range. In such a situation, we will "infer that the judge has considered all the factors for a fair sentence. . ., and it will be rare for a reviewing court to say such a sentence is `unreasonable.'" United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). In United States v. Alonzo, this Court further clarified the deferential standard for reviewing sentences within a properly calculated Guideline range. 2006 WL 39119, at *2, 435 F.3d 551, 553-54 (5th Cir.2005). Alonzo held that such a sentence is afforded a rebuttable presumption of reasonableness. Id. at *2, at 553-54.

Second, a sentencing court may impose a sentence that includes an upward or downward departure as allowed by the Guidelines. Because the court's authority to depart derives from the Guidelines themselves, a sentence supported by a departure is also a "Guideline sentence." Mares, 402 F.3d at 519 n. 7. In evaluating both a decision to depart and the extent of the departure, we review for "abuse of discretion." United States v. Saldana, 427 F.3d 298, 308 (5th Cir.2005). In assessing the extent of a departure, we continue to look to our pre-Booker case law for guidance. See id. at 312; United States v. Simkanin, 420 F.3d 397, 419 (5th Cir. 2005); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir.2005).

The district court in the instant case elected a third option. After Booker, a court may impose a non-Guideline sentence—a sentence either higher or lower than the relevant Guideline sentence. Before imposing a non-Guideline sentence, however, the court must consider the Sentencing Guidelines. In light of this duty, "a district court is still required to calculate the guideline range and consider it advisory." United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.2005) (emphasis in original). Consequently, if it decides to impose a non-Guideline sentence, the court should utilize the appropriate Guideline range as a "frame of reference." See United States v. Fagans, 406 F.3d 138, 141 (2d Cir.2005); United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005).

Additionally, the district court must more thoroughly articulate its reasons when it imposes a non-Guideline sentence than when it imposes a sentence under authority of the Sentencing Guidelines. Mares, 402 F.3d at 519. These reasons should be fact-specific and consistent with the sentencing factors enumerated in section 3553(a). Id. The farther a sentence varies from the applicable Guideline sentence, "the more compelling the justification based on factors in section 3553(a)" must be. United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005); see Jackson, 408 F.3d at 305. The court, however, need not engage in "robotic incantations that each statutory factor has been considered." United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir.2005) (internal quotation marks omitted); see United States v. Simpson, 430 F.3d 1177, 1186-87 (D.C.Cir. 2005) (finding no requirement for the district court to "specifically refer to each [section 3553(a)] factor") (emphasis in original). Congress never intended sentencing "to become a hyper-technical exercise devoid of common sense." United States v. Gonzalez, 250 F.3d 923, 930 (5th Cir.2001). Thus, a checklist recitation of the section 3553(a) factors is neither necessary nor sufficient for a sentence to be reasonable. See Dean, 414 F.3d at 729.

The purpose of the district court's statement of reasons is to enable the reviewing court to determine whether, as a matter of substance, the sentencing factors in section 3553(a) support the sentence. United States v. Long Soldier, 431 F.3d 1120, 1122-23 (8th Cir.2005); see United States v. McBride, 434 F.3d 470, 474 (6th Cir.2006) (holding that "a sentence should reflect the considerations listed in § 3553(a)"). We agree with the framework articulated by the Eighth Circuit in assessing the reasonableness of a court's statutory support. See United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005). A non-Guideline sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors. See id.; Long Soldier, 431 F.3d at 1123-24 (applying the "Haack test for reasonableness" to a non-Guidelines sentence).

III. DISCUSSION

The court properly calculated the Guideline range sentence, and Smith does not object to that calculation. In addition, the court used the Guideline range as a frame of reference and carefully explained why it would impose a non-Guideline sentence:

I've looked at your background. You have a 7th grade education, you're a convicted felon . . . . [T]he grip of the gun was wrapped with tape. . . . You have three narcotics convictions . . ., you're on parole but you're on for less than a month when this occurred. You have three juvenile convictions which were not counted with respect to your criminal history. Accordingly, pursuant to the Sentencing Reform Act of 1984, I take into consideration not only the guidelines but the need to afford adequate deterrence for criminal conduct and need to protect the public from further crimes of you, it's the judgment of this court that you . . . be imprisoned for a term of 60 months . . . . Again, I state for the record that I go above the 27 months [Guideline range for the...