U.S. v. Smith

• Decision Date: 11 October 2007
• Docket Number: No. 06-5681.,06-5681.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Russell SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

505 F.3d 463

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

No. 06-5681.

United States Court of Appeals, Sixth Circuit.

Argued: August 21, 2007.

Decided and Filed: October 11, 2007.

ARGUED: Robert D. Philyaw, Law Office Of Robert D. Philyaw, Signal Mountain, Tennessee, for Appellant. Christopher D. Poole, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: Robert D. Philyaw,

Law Office of Robert D. Philyaw, Signal Mountain, Tennessee, for Appellant. Christopher D. Poole, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: COLE and GRIFFIN, Circuit Judges; WATSON, District Judge.^*

GRIFFIN, J., delivered the opinion of the court, in which WATSON, D.J., joined. COLE, J. (pp. 472-75), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

Defendant Ronald Russell Smith pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). After noting that Smith committed the robbery while on supervised release for two other federal felonies, had 22 prior state convictions, and continued to commit crimes while in custody, the district court sentenced him to a term of 132 months of incarceration. The district court considered the advisory Sentencing Guideline range of 46 to 57 months, but concluded that a 132-month sentence was warranted because of defendant's extraordinary criminal history and exceptional danger to public safety. Defendant now appeals his sentence as being unreasonable. For the reasons set forth below, we affirm Smith's sentence. In doing so, we hold that defendant's above-the-Guidelines sentence is both procedurally and substantively reasonable, and thus the district court did not abuse its sentencing discretion.

I.

The facts leading up to defendant's guilty plea for bank robbery are undisputed. On January 12, 2005, defendant entered a branch of Suntrust Bank in Cleveland, Tennessee and gave the teller a note that read, "Give me all your 100s, 50s, and 20s." Defendant was unarmed, not wearing a disguise, and did not make an express threat. The teller complied with the request, gave defendant all the cash from her drawer, and defendant left with $5,132. Surveillance photographs were distributed to the news media, and a U.S. probation officer recognized defendant as one of his supervised releases. The probation officer reported defendant's identity to the FBI and warrants were issued for his arrest.

Defendant fled the state but was apprehended three days later in Arkansas after he crashed a stolen car into a ditch while fleeing from an Arkansas police officer. After being advised of his rights, defendant admitted to stealing the car, robbing the bank, and stealing the license tag found on the car. A small amount of marijuana was also found in the car. Defendant pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). There was no plea agreement.

The district court held a sentencing hearing on May 2, 2006, during which defendant argued for leniency. He claimed, through his attorney, that he had reached a turning point in his life, and his undisguised and unarmed bank robbery was a cry for help. In response, the United States noted that defendant has committed other crimes while in custody and argued that "I don't think he needs to be getting out of custody at all." The United States asked for a sentence "towards the statutory maximum."¹ In response, the Honorable R. Allen Edgar stated:

Well, the Court has considered this, and the Court has decided that, has considered the guidelines, but this sentence will be outside of the guideline range under the authority of and flexibility granted to this Court and other trial courts pursuant to the Booker case from the United States Supreme Court.

This defendant has three prior federal convictions, which I think is a record for me here. And I've been doing this 21 years. He has 22 prior state convictions that are in the PSR, and probably many more or several more that he's already indicated here. And as [the United States] points out, many of these are not counted in the sentencing guidelines. So, the criminal history score specified by the guidelines of IV does not really and truly represent the defendant's criminal behavior.

The defendant has no stable personal history. He's 58 years old. And best I can tell from the presentence report, he's never been employed. He does have a longstanding substance abuse problem that won't go away. He continues to commit crimes without let-up, both in and out of custody. And he is a threat to public safety and the public needs protection from Mr. Smith unfortunately. And it does appear that the defendant is just one of those people who needs to be incarcerated. I mean, he, frankly, is just not capable of functioning on the outside.

So, pursuant to the Sentencing Reform Act of 1984, it's the judgment of this Court on Count 1 that the defendant is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 132 months.

The district court also ordered defendant to pay $5,132 in restitution, a $100 special assessment, and serve three years of supervised release. Immediately after pronouncing the sentence, the district court held a hearing regarding revocation of defendant's supervised release.

At the revocation hearing, defendant was accused of violating the terms of his supervised release by committing the bank robbery, leaving the judicial district without permission from his probation officer, and illegally possessing a controlled substance. Through his attorney, defendant admitted that "there is no question that he violated the conditions of his supervised release." Nevertheless, he asked for less than the two-year statutory maximum on each of the two violations of his supervised release, and asked that they be served concurrently, but consecutive to the sentence for bank robbery. The court instead sentenced defendant to 24 months on each of the two counts, each to be served consecutively. The 132-month sentence, combined with the two consecutive 24-month sentences, result in a total sentence of 180 months (15 years).

Defendant urges the court to vacate or reduce his sentence and remand for resentencing, claiming that his sentence is "wholly unreasonable under the circumstances of this case."² We have held that a reasonableness review, in the sentencing context, involves both procedural and substantive components. United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). Defendant challenges both the procedural and substantive reasonableness of his sentence.

II.

When reviewing a sentence for reasonableness, an appellate court must consider more than merely the length of the sentence. Webb, 403 F.3d at 383; see also United States v. Booker, 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In order for a sentence to be affirmed as procedurally reasonable, the reviewing court must ensure that the sentencing judge weighed the appropriate considerations in determining the sentence. Specifically, the sentencing judge must have appreciated the advisory nature of the Guidelines, properly calculated the Guidelines range, and considered the factors listed in 18 U.S.C. § 3553(a). United States v. Davis, 458 F.3d 491, 495 (6th Cir.2006).

Defendant argues that the sentence is procedurally unreasonable for two reasons: (1) the district court rejected his argument that his sentence should be in the low range as determined by the Guidelines without providing an adequate explanation, and (2) the district court did not discuss the § 3553(a) factors, but simply declared that the sentence would be outside of the Guidelines range.

Defendant objects to the district court's explanation of the sentence, stating in his brief that "Defendant argued that his sentence should be at the low end of the Guideline range, but the record is somewhat vague as to the judge's reasons for rejecting that argument and sentencing the Defendant to a sentence two times that of the range." Defendant then cites our decision in United States v. Richardson, 437 F.3d 550, 554 (6th Cir.2006), for the proposition that the district court must consider a defendant's argument regarding sentencing and explain its reasons for rejecting it.

In Richardson, we stated that when "a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it. This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable." Richardson, 437 F.3d at 554. The record shows that the district court did consider defendant's argument that he had reached a turning point in life. After defendant's attorney suggested that defendant had reached a stage in life in which he decided to accept full responsibility for his actions, the court reminded counsel that defendant had recently committed crimes while in custody. This dialogue shows that the district court considered defendant's argument but disagreed with the suggestion that defendant had changed.

Defendant further argues that the sentence is procedurally unreasonable because "[i]n the present case, the district court never discussed § 3553(a) or its factors. . . ." However, by enacting 18 U.S.C. § 3553(a), Congress directed district courts to consider the listed factors when determining sentences. This statutory command is an insistence upon deliberation, not a formulaic requirement. When reviewing a district court's consideration of the § 3553(a) factors, we have never required "the `ritual incantation' of the factors to affirm a sentence." United States v. Cage, 458 F.3d 537, 543 (6th Cir.2006) (quoting United States v. Johnson, 403 F.3d 813, 816 (6th...