United States v. Smith

Citation756 F.3d 1179
Decision Date30 June 2014
Docket NumberNo. 13–1112.,13–1112.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Joshua Bodean SMITH, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

756 F.3d 1179

UNITED STATES of America, Plaintiff–Appellee,
Joshua Bodean SMITH, Defendant–Appellant.

No. 13–1112.

United States Court of Appeals,
Tenth Circuit.

June 30, 2014.

[756 F.3d 1180]

O. Dean Sanderford, Assistant Federal Public Defender (Warren R. Williamson, former Interim Federal Public Defender, with him on the briefs), Denver, CO, for Defendant–Appellant.

J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for Plaintiff–Appellee.

Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

Must a sentencing court studiously ignore one of the most conspicuous facts about a defendant when deciding how long he should spend in prison? After a court sentences a man to many decades in prison for using a gun during a crime of violence, must the court pretend the gun sentence doesn't exist when weighing an appropriate prison term for the underlying crime of violence?

That's the blinkered view the government persuaded the district court to adopt in this case. No one doubts that Joshua Smith deserves a long prison sentence. He robbed two stores and shot the managers in both. For his conduct he stands

[756 F.3d 1181]

convicted of two counts of robbery (18 U.S.C. § 1951) and two counts of using a gun “during and in relation to” those “crime[s] of violence” (18 U.S.C. § 924(c)). At sentencing, the district court began by recognizing that § 924(c) mandated a 35–year prison term for Mr. Smith's gun use during the robberies. Turning then to the task of fixing a sentence for the robberies themselves, the court acknowledged any robbery sentence had to run consecutively to, not concurrently with, the mandatory gun sentence. Still, the question remained how long Mr. Smith's robbery sentence should be. How much more prison time beyond about 2045—when Mr. Smith will be 55 years old and otherwise eligible for release—might be necessary and just. Normally, of course, a district court enjoys considerable discretion when it comes to picking a prison term within the applicable statutory range. But at the government's urging in this case the district court decided there was one set of facts it had to disregard—Mr. Smith's § 924(c) gun convictions and the lengthy sentence it just issued for them.

When it comes to those facts alone the government argued and the district court held a sentencing judge must remain willfully blind. According to the government, a sentencing judge is powerless to reduce by a year, a month, or a day the prison time it issues for an underlying crime of violence in light of a simultaneously issued § 924(c) gun sentence. A judge can't so much as consider the fact a § 924(c) conviction and sentence exist. Even if the § 924(c) conviction and sentence guarantee the defendant a prison term of many decades. Even if the § 924(c) prison term is certain to outlast the defendant's life and the lives of every person now walking the planet—itself no fanciful possibility. See, e.g., Deal v. United States, 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993); United States v. Angelos, 345 F.Supp.2d 1227, 1260–61 (D.Utah 2004), aff'd,433 F.3d 738 (10th Cir.2006). On the government's view, a district court must always and categorically disregard the sentence it has just pronounced for a § 924(c) gun conviction when turning to consider an appropriate sentence for the underlying and intimately related crime of violence. Such a rule may not test the limits of the human capacity for self-deception. But if allowed to stand it would transform the act of sentencing in these cases from a searching and fact-sensitive inquiry aimed at finding a fitting punishment into an enterprise built on a fiction, even a suspension of disbelief.

We are convinced the law doesn't require so much from sentencing courts. Neither should the perfidiousness of a defendant's conduct be allowed to obscure (or perhaps warp) the law's teachings on this score. Viewed with a cold eye, the relevant statutes permit a sentencing court to consider a defendant's § 924(c) conviction and sentence just as they permit a sentencing court to consider most any other salient fact about a defendant. To say this much isn't to suggest a sentencing court must reduce a defendant's related crime of violence sentence in light of his mandatory gun enhancement sentence under § 924(c). Only that the court is not required to feign the sort of ignorance the government demands.


We begin with 18 U.S.C. § 3661. “No limitation,” says the statute, may be placed on a court's power to consider information about a defendant's “background, character, and conduct” when seeking to fashion an appropriate sentence. Id. As the Supreme Court has explained, this provision ensures sentencing judges access to “the widest possible breadth of information about a defendant” so that the punishments they issue “suit not merely the offense but the individual.”

[756 F.3d 1182]

Pepper v. United States, ––– U.S. ––––, 131 S.Ct. 1229, 1240, 179 L.Ed.2d 196 (2011) (quoting Wasman v. United States, 468 U.S. 559, 564, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)); see also Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (“[T]he punishment should fit the offender and not merely the crime.”). In this way, the statute preserves a long tradition, one extending back “before ... the American colonies became a nation,” a tradition of affording judges “discretion in the sources and types of evidence” they may consult at sentencing, subject of course and always to the Constitution's constraints. Pepper, 131 S.Ct. at 1240 (quoting Williams, 337 U.S. at 246, 69 S.Ct. 1079).

The government's theory in this appeal sits uncomfortably with § 366 1, the Supreme Court's interpretation of it, and the historical practice it embodies. Rather than ensure a sentence predicated on a full view of the defendant, the government asks us to bar sentencing courts from considering an entire category of information about him. This despite the fact the Supreme Court has warned that placing such “categorical bar[s]” on the information available to sentencing courts risks “directly contraven[ing] Congress'[s] expressed intent in § 3661.” Pepper, 131 S.Ct. at 1242. Despite the Court's declaration that § 3661's “broad language” does not provide “any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing.” United States v. Watts, 519 U.S. 148, 152, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam). And despite the fact the Court has rejected proposal after proposal seeking to impose non-constitutional limits on the information a court may consider at sentencing. See, e.g., Williams v. Oklahoma, 358 U.S. 576, 584–86, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) (rejecting categorical bar against considering conduct related to one count of conviction when sentencing for an independent count of conviction); Nichols v. United States, 511 U.S. 738, 746–49, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (defendant's prior convictions); Witte v. United States, 515 U.S. 389, 397–401, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (conduct for which the defendant may later be prosecuted and convicted); Pepper, 131 S.Ct. at 1241–43 (post-conviction rehabilitation efforts).

The government's theory in this appeal sits uneasily, too, with the even more specific guidance the Supreme Court has provided about § 3661's application in the § 924(c) context. In United States v. Watts, the Court read § 3661 to permit a sentencing court to find by a preponderance of the evidence that the defendant engaged in the conduct alleged in a § 924(c) charge—even though he was acquitted on that charge—and then use that finding to enhance his sentence for the underlying crime of violence. 519 U.S. at 156–57, 117 S.Ct. 633. And given that, one might well ask this: How can it be that § 3661 authorizes a sentencing court to consider facts related to a defendant's § 924(c)acquittal when fashioning a sentence for the underlying crime of violence but not facts related to his § 924(c)conviction and sentence?

If anything, the case for applying § 3661 would seem a good deal more compelling here than there. After all, even if § 3661 allows the practice in Watts one could debate whether the Constitution prohibits it, forbidding courts (at least usually) from imposing greater punishments that depend on facts neither admitted by the defendant nor found by a jury. See Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2160–63, 186 L.Ed.2d 314 (2013); Rita v. United States, 551 U.S. 338, 373, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (Scalia, J., concurring in part and concurring in the judgment). Meanwhile, no one has identified

[756 F.3d 1183]

any constitutional imperative that might prevent sentencing courts from applying § 3661 to reduce crime of violence sentences in light of simultaneously issued § 924(c) sentences. For that matter, in its briefs to this court the government doesn't even mention § 3661 or any of the Supreme Court's guidance about its scope or the tradition it codifies.


Still, that's just the beginning of the government's troubles. While § 3661 explains what a district court may consider at sentencing, 18 U.S.C. § 3553(a) describes what a district court must consider when sentencing for crimes that lack a mandatory sentence prescribed by statute—crimes like Mr. Smith's underlying § 1951 robbery convictions. In what's often called its parsimony principle, § 3553(a) directs courts to “impose a sentence sufficient, but not greater than necessary, to comply” with several (admittedly incommensurate) policy goals. Goals including a just punishment, adequate deterrence, and protection of the public. And here again it is difficult to reconcile the government's insistence that district courts must categorically ignore § 924(c) convictions and sentences with this statute's demands.

Consider just one of the policy goals...

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