U.S. v. Smart

• Decision Date: 04 March 2008
• Docket Number: No. 06-6120.,06-6120.
• Citation: 518 F.3d 800
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Christopher Wayne SMART, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

518 F.3d 800

UNITED STATES of America, Plaintiff-Appellant, v. Christopher Wayne SMART, Defendant-Appellee.

No. 06-6120.

United States Court of Appeals, Tenth Circuit.

March 4, 2008.

Randal A. Sengel, Office of the United States Attorney, Oklahoma City, Oklahoma (John C. Richter, United States Attorney, with him on the briefs), for the Plaintiff-Appellant.

Fred L. Staggs, Oklahoma City, Oklahoma, for the Defendant-Appellee.

Before HENRY, LUCERO, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Christopher Wayne Smart was convicted of inducing a minor to engage in sexually explicit conduct for the purpose of producing videotapes depicting such conduct in violation of 18 U.S.C. § 2251(a). Exercising its discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Smart's sentencing court concluded that his United States Sentencing Guidelines ("Guidelines") range of 168 to 210 months' imprisonment overstated the seriousness of his offense, and varied downward, imposing a sentence of 120 months' imprisonment. The government appeals.

We review this exercise of district court sentencing discretion under the recent Supreme Court holdings in Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which substantially invalidate the rigorous form of review our circuit announced in United States v. Garcia-Lara, 499 F.3d 1133 (10th Cir.2007). Applying a deferential abuse of discretion standard, we AFFIRM.

I

Smart was indicted, along with his codefendants Kevin "Tiny" Fields and Robert Rousey, on August 17, 2005, by a grand jury in the Western District of Oklahoma. He was charged with a single count of producing videotapes depicting the sexual abuse of a minor in violation of 18 U.S.C. § 2251(a). All charges in the case stemmed from a March 2001 investigation by officers in the El Reno, Oklahoma, police department of suspected sexual abuse by Rousey of a 13-year-old girl who lived with him intermittently. In November 2000, the defendants had videotaped the girl having sex with the three of them and a woman, Johnita Lynn Wheeler.

Rousey pleaded guilty to two counts under § 2251(a) and was sentenced to the statutory minimum of 120 months' imprisonment. His Guidelines range was 110 to 137 months, based on a total offense level of 26 and a criminal history category of V. Unlike Rousey, Smart chose to exercise his right to trial. At trial, the victim testified to a jury that Smart, Rousey, and Fields all knew that she was less than 18 years old at the time of the offense. Wheeler testified that she was concerned about engaging in group sex with someone who looked so young, and that she asked Rousey about the victim's age. She further testified that Rousey told her the girl was 16 and this had been confirmed by Smart. Smart took the stand in his own defense and testified that he had never spoken with either Fields or Rousey about the victim's age, and that he had not told Wheeler that the victim was 16 years old. Smart was convicted as charged.

At sentencing, the district court accepted the Guidelines calculation in Smart's presentence report ("PSR"), which determined that Smart's total adjusted offense level was 31. That offense level reflected a base level of 27, a two-point enhancement due to the age of the victim, see U.S.S.G. § 2G2.1(b)(1), and a further two-point increase for obstruction of justice, see § 3C1.1. Smart's criminal history category was V. He requested, but did not receive, a two-point reduction for aberrant behavior under § 2K2.20. Accordingly, Smart's Guidelines range was 168 to 210 months' imprisonment.

The district court sentenced Smart to 120 months' imprisonment, a downward variance of 48 months below the bottom of his Guidelines range. After referring to the factors set forth in 18 U.S.C. § 3553(a), the court offered its reasons for granting Smart a downward variance. Initially, the court addressed the difference in culpability between Smart and Rousey, and the nature and seriousness of Smart's conduct, stating:

I think [Smart's] conduct ... does fall somewhere between Mr. Fields and Mr. Rousey. It was obvious to me that Mr. Rousey was I guess the lead instigator of this in trying to make some sex films and so forth.

The court communicated a discomfort with imposition of a higher sentence than that of his codefendant based on Smart's decision to proceed to trial:

I also agree that while you do get the benefit of accepting responsibility and avoiding trial and that in the Guidelines ... that's a consideration the court takes, I also agree that you do have a right to go to trial. I guess I would put it this way, that while you get the benefit of your plea agreement if you plead, I don't necessarily think that you should be punished because you exercised your right to a trial by jury.

Finally, the court elaborated further on its initial point:

I feel it would violate [18 U.S.C. § 3553] ... if you received a far greater sentence than Mr. Rousey. I believe that the disparity would be a violation of that section. And I find, in reviewing the overall case, your involvement as opposed to Mr. Fields' and Mr. Rousey's and the others, I do not feel that you should receive a greater sentence than Mr. Rousey. As I stated, he was obviously the instigator and the promoter of this whole event and got others involved, including the under-age girl, and it was his contact with her which created the whole situation. And to avoid any disparity, great unwarranted disparity in the sentences among the defendants based upon their involvement in this episode, and in meeting the other standards, the court finds a reasonable sentence should be that Christopher Wayne Smart is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 120 months.

The district court explained, "I feel that that sentence is reasonable and that it reflects the seriousness of the offense, promotes respect for the law, and provides just punishment. Certainly, that 10-year sentence would afford adequate deterrence to criminal conduct and the public would be protected." The government argues that the sentence is unreasonable.

II

Since the Supreme Court's decision in Booker, which relegated the Sentencing Guidelines to an advisory status, district courts have been free to apply any sentence that is "reasonable" under the sentencing factors listed at 18 U.S.C. § 3553(a). See 543 U.S. at 261, 125 S.Ct. 738. Our appellate review for reasonableness includes both a procedural component, encompassing the method by which a sentence was calculated, as well as a substantive component, which relates to the length of the resulting sentence. United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006).

The government does not specify whether it challenges the procedural or substantive component of Smart's sentence. Rather, it contends generally that the district court's reliance on two "legally erroneous" sentencing factors rendered Smart's sentence unreasonable. We conclude that this assertion raises a challenge to both aspects of the reasonableness of Smart's sentence.

In Gall, the Supreme Court identified "failing to consider the § 3553(a) factors" and "failing to adequately explain the chosen sentence" as forms of procedural error. 128 S.Ct. at 597. Section 3553(a) lists in broad and general terms the factors which district courts must account for during sentencing, and encompasses the vast majority of considerations courts have traditionally treated as relevant in setting sentences. The error asserted here is not a failure to evaluate these factors, but rather, a related error: consideration by the district court of legally erroneous factors.

We agree that if a district court bases a sentence on a factor not within the categories set forth in § 3553(a), this would indeed be one form of procedural error. Section 3553(a) mandates consideration of its enumerated factors, and implicitly forbids consideration of factors outside its scope. § 3553(a) ("The court, in determining the particular sentence to be imposed, shall consider [the listed factors]."); see also United States v. Roberson, 517 F.3d 990, 994, 2008 WL 323223, at *1 (8th Cir. Feb.7, 2008) (procedural sentencing error includes "giving significant weight to an irrelevant or improper factor").¹

Because the government also questions whether Smart's sentence can be supported in the absence of the allegedly "improper" factors it identifies, it has also raised a substantive reasonableness challenge. A challenge to the sufficiency of the § 3553(a) justifications relied on by the district court implicates the substantive reasonableness of the resulting sentence. United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.2007); see also Gall, 128 S.Ct. at 597 (in conducting substantive reasonableness review, appellate courts must deferentially examine the district court's determination that "the § 3553(a) factors, on a whole, justify the extent of the variance").

III

As directed by the Supreme Court, we begin by considering the procedural reasonableness of the sentence imposed. Gall, 128 S.Ct. at 597 (appellate courts "must first ensure that the district court committed no significant procedural error"). The government raises two factors that, it contends, were improper under § 3553(a). First, the government argues that under § 3553(a)(6), the district court could not take into account the disparity between Smart's sentence and that of his codefendant. Section 3553(a)(6) mandates consideration of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."

After Gall, it is clear that codefendant disparity is not a per se "improper" factor, such that its consideration would constitute procedural error. The Court approvingly noted that the district...