568 F.3d 923 (11th Cir. 2009), 08-13215, United States v. Smith

Docket Nº:08-13215.
Citation:568 F.3d 923
Opinion Judge:MARCUS, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Gregory SMITH, Defendant-Appellant.
Attorney:Bernardo Lopez, Fed. Pub. Def., Ft. Lauderdale, FL, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Smith. Lisa A. Hirsch, Anne R. Schultz, Asst. U.S. Atty., Kathleen M. Salyer, Emily M. Smachetti, Eric A. Hernandez, Miami, FL, for U.S.
Judge Panel:Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,[*] District Judge.
Case Date:May 19, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 923

568 F.3d 923 (11th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth Gregory SMITH, Defendant-Appellant.

No. 08-13215.

United States Court of Appeals, Eleventh Circuit.

May 19, 2009

Page 924

[Copyrighted Material Omitted]

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Bernardo Lopez, Fed. Pub. Def., Ft. Lauderdale, FL, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Smith.

Lisa A. Hirsch, Anne R. Schultz, Asst. U.S. Atty., Kathleen M. Salyer, Emily M. Smachetti, Eric A. Hernandez, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,[*] District Judge.

MARCUS, Circuit Judge:

Kenneth Smith, who was convicted by a jury of a crack cocaine offense, appeals from the sentence imposed by the district court after it had granted his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on Amendment 706 to the United States Sentencing Guidelines. Smith argues that the district court abused its discretion in failing to grant him a greater sentence reduction either to the low end of his amended guideline range or below that range, and in failing to properly consider the 18 U.S.C. § 3553(a) factors. After thorough review, we affirm.

I.

A jury in the Southern District of Florida convicted Smith of possessing crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (" Count One" ); using and carrying a firearm during and in relation to a felony drug trafficking crime, in violation of 18 U.S.C. § 924(c) (" Count Two" ); and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (" Count Three" ).

The pre-sentence investigation report (" PSI" ) found that Smith was responsible for possessing 182 grams of crack cocaine and, therefore, calculated a base offense level of 34. Smith's criminal history category was determined to be a level of III, yielding a guideline range of 188 to 235 months' imprisonment on Counts One and Three. As for Count Two, the mandatory minimum term of imprisonment was sixty months to run consecutively. In 1993, the district court sentenced Smith to 235 months of imprisonment for Count One, 60 months of imprisonment for Count Two to run consecutively to the sentence imposed for Count One, and 120 months of imprisonment for Count Three to run concurrently with the sentence imposed for Count One. Thus, Smith's total sentence was 295 months of imprisonment, along

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with a five year term of supervised release and a special assessment of $150.

In 2008, Smith moved under 18 U.S.C. § 3582(c)(2) for a modification of his term of imprisonment pursuant to Amendment 706 of the Sentencing Guidelines. Amendment 706 to the Sentencing Guidelines, which became retroactive on March 3, 2008, U.S.S.G.App. C, Amend. 713 (Supp. May 1, 2008), reduced by two levels the base offense level for crack cocaine sentences calculated pursuant to U.S.S.G. § 2D1.1(c). The Sentencing Guidelines direct that a defendant may seek retroactive application of this amendment through an 18 U.S.C. § 3582(c)(2) motion. U.S.S.G. § 1B1.10(a); United States v. Pelaez , 196 F.3d 1203, 1205 n. 3 (11th Cir.1999).

Smith asked the district court, in light of the 18 U.S.C. § 3553(a) factors, to sentence him at the low end of or below his amended guideline range of 151 to 188 months. At a sentencing hearing conducted by the district court to consider his motion, Smith argued that he was eligible for a two-level reduction based on Amendment 706, and that his re-sentence should reflect the fact that he had not engaged in any crime since becoming a prisoner and that he had earned 1,800 hours of education credit while in prison. His counsel also proffered the testimony of several of Smith's family members attesting to his character, and observing that his mother had recently suffered a stroke and was bedridden. The government, in turn, urged the district court to re-sentence Smith at the high end of the amended guideline range, particularly because the original trial judge did not think that Smith's actions warranted a sentence at the low end of the original guideline range. In the course of presenting its argument, the government specifically referenced 18 U.S.C. § 3553(a).

After the hearing, the district court issued a brief form order granting Smith's 18 U.S.C. § 3582(c)(2) motion for a sentence reduction, determining that under the amended guideline Smith's base offense level was 32, which, when combined with a criminal history of III, yielded an amended guideline range of 151 to 188 months. We add that the district court's order specifically referenced the defendant's motion for a sentence reduction. The court reduced Smith's sentence to 248 months' imprisonment-188 months for the crack cocaine offense, plus the consecutive 60 month sentence for the firearms violation.

II.

We review a district court's decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for an abuse of discretion. United States v. White , 305 F.3d 1264, 1267 (11th Cir.2002).

Smith argues that the district court abused its discretion by sentencing him at the high end of his amended guideline range. He suggests that the court should have reduced his sentence further, either to the bottom of the amended guideline range (151 months) or below the amended guideline range, referencing his considerable rehabilitation, his close family ties, the serious medical condition of his mother, and the unwarranted disparity in penalties between crack cocaine and powder cocaine offenses. Smith also claims that the district judge failed to articulate the reasons for his sentencing decision and that the record does not show that he had considered the factors embodied in 18 U.S.C. § 3553(a). We are unpersuaded.

Under 18 U.S.C. § 3582(c)(1)(B), a district court may not modify a term of imprisonment once it has been imposed except when expressly permitted...

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