United States v. Smith
| Decision Date | 24 October 2013 |
| Docket Number | No. 12-3289,12-3289 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JORDAN SMITH, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Kan.)
ORDER AND JUDGMENT*Before HARTZ, BALDOCK, and EBEL, Circuit Judges.**
Defendant Jordan Smith pleaded guilty to two counts of wire fraud in violation of 18 U.S.C. § 1343. Applying the 2011 Guidelines Manual, the presentence report (PSR) assigned Defendant a total offense level of 16 and a criminal history category of VI, yielding a guideline sentencing range of 46-57 months. See U.S.S.G. § 5A. At sentencing, the district court varied upward and sentenced Defendant to a term of 180 months' imprisonment on each § 1343 count. The court imposed these sentences to runconcurrently with each other and consecutively to a Kansas state sentence Defendant is serving for burglaries and thefts underlying the wire fraud offenses. On appeal, Defendant challenges his sentence as both procedurally and substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse and remand for resentencing.
Defendant acknowledged in his plea agreement that, as part of his scheme to defraud, he burglarized residences and businesses and stole personal property. He then listed and sold the property on Craigslist or had others do so for him. Defendant admitted 36 victims of his scheme incurred a total loss of $115,964.78. Although Defendant was only 21 years old at the time he committed the instant offenses, he had already amassed an extraordinary criminal history. The PSR listed 11 convictions for misdemeanor theft (two of which Defendant committed while a minor), 5 for felony theft, 5 for burglary, 15 for parking or traffic violations, 2 for identity theft, and 2 for domestic battery. Defendant was already serving a nine-year state sentence for the burglaries and thefts underlying his wire fraud scheme when the PSR was prepared, as the state court had revoked his original 108-month suspended state sentence for these crimes. Oddly, although the PSR considered these crimes relevant conduct and used them to increase Defendant's offense level under the Guidelines, nowhere does the PSR mention U.S.S.G. § 5G1.3(b), which requires that a guideline sentence run concurrent to an undischarged sentence for relevant conduct used to increase a defendant's offense level.
Prior to sentencing, the district court filed a Federal Rule of Criminal Procedure 32(h) letter. The court stated it was "considering a variance from the guideline sentence of up to and including the maximum 20 years imprisonment on each of the counts of conviction to run consecutively" to each other and "consecutively to any state sentence the defendant is serving." The court justified the possible variance on a number of factors. These included Defendant's history and characteristics, which indicated a dedication to the criminal lifestyle, the fact the crimes underlying the wire fraud were burglaries of dwellings and thus crimes of violence, and the need to protect the public from Defendant.
At sentencing, the district court adopted the PSR's calculations, but varied upward. Both in his sentencing memorandum and at sentencing, Defendant argued that, under U.S.S.G. § 5G1.3(b), a within-guideline sentence must run concurrently with his undischarged state sentence. The district court never acknowledged § 5G1.3(b), but rejected Defendant's request for a concurrent sentence on four grounds. First, the court felt it was "not required to ignore [D]efendant's conduct which is part and parcel of his federal crimes." Second the court felt no double punishment was involved because it was sentencing Defendant for federal crimes and not state crimes. Third, the court did not trust Defendant would have to serve his full state sentence. Fourth, the court stated "the bottom line" was concurrent federal and state sentences would not be sufficient in Defendant's case.
Based on these considerations, the district court sentenced Defendant to 180 months' imprisonment on each wire fraud count, to run concurrently with each other andconsecutively to his state sentence. In explaining the sentence the court explicitly considered a number of the sentencing factors under 18 U.S.C. § 3553(a). In analyzing unwarranted sentence disparity under § 3553(a)(6), the court noted only that it had sentenced a codefendant to less time but "many factors differentiate[d] him and his conduct from this Defendant." After imposing the sentence, the court asked if Defendant had any objections. Defendant first stated he had no procedural objections, but then objected to the length of his sentence. Defendant again argued applying his federal sentence consecutively to his undischarged state sentence was inconsistent with U.S.S.G. § 5G1.3(b) and punished him twice for the same crime. Further, Defendant noted the combination of the upward variance and the consecutive nature of the sentence resulted in an effective sentence five to six times longer than the Guidelines recommended. At no point in responding to Defendant's objections did the court acknowledge § 5G1.3(b). Rather, the court seemed perplexed by Defendant's § 5G1.3(b) objection, asking: "You think that wire fraud should be considered part of the state crime?"
Defendant argues the district court (1) committed procedural error by failing to consider nationwide sentencing disparities under § 3553(a)(6), and (2) committed substantive error by, among other things, sentencing him inconsistently with U.S.S.G. § 5G1.3(b) and United States v. Kieffer, 681 F.3d 1143 (10th Cir. 2012). Our review of Defendant's sentence proceeds in two steps. "The correct Guidelines calculation is the natural starting point from which the sentencing court exercises its discretion under § 3553(a)." Kieffer, 681 F.3d at 1164 (internal quotations omitted). As such, we Id. at 1165 (quoting United States v. Gall, 552 U.S. 38, 51 (2007)). Although the Guidelines are now advisory, improperly calculating the guidelines range is an example of "likely 'significant procedural error,'" as is failing to properly consider the 18 U.S.C. § 3553(a) factors. Id. "Only if the district court follows sound procedure may we then consider whether the resulting sentence is reasonable in substance." United States v. Cerno, 529 F.3d 926, 937 (10th Cir. 2008) (emphasis added).
"Our preliminary task is to identify [Defendant's] procedural challenges." United States v. Lente, 647 F.3d 1021, 1031 (10th Cir. 2011). Defendant properly characterized his sentencing-disparity argument as procedural. Defendant, however, mischaracterized his § 5G1.3(b) argument, both at sentencing and now on appeal, as substantive. In calculating the advisory guideline sentencing range, "courts must correctly determine whether the Guidelines recommend concurrent sentences," and "[f]ailure to do so results in procedural error." United States v. Nania, 724 F.3d 824, 830 (7th Cir. 2013) (citing Kieffer, 681 F.3d at 1167-68) (emphasis added). The district court's failure to account for U.S.S.G. § 5G1.3 in calculating Defendant's within-guideline sentencing range is thus undoubtedly procedural, and we now address it as such.
Although Defendant mischaracterized his § 5G1.3(b) argument as substantive, Defendant raised the § 5G1.3(b) issue both in his sentencing memorandum and atsentencing. Further, the record reflects the district court understood Defendant's argument was premised on the notion that imposing his federal sentence consecutively to his state sentence meant he was being punished twice for the same conduct. Thus, Defendant effectively preserved this procedural challenge for appeal. United States v. Reyes Pena, 216 F.3d 1204, 1209 (10th Cir. 2000). When a party preserves its challenge of a court's sentencing procedure, "our standard of review is . . . abuse of discretion, under which we review de novo the district court's legal conclusions regarding the guidelines . . . ." United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).
"[I]n general, a district court has broad discretion to sentence a defendant to a consecutive or concurrent sentence." United States v. Contreras, 210 F.3d 1151, 1152 (10th Cir. 2000). U.S.S.G. § 5G1.3(b), however, limits this discretion. It requires a guideline sentence "run concurrently to the remainder of [an] undischarged term of imprisonment" where the undischarged term "resulted from another offense that is relevant conduct to the instant offense of conviction . . . and that was the basis for an increase in the offense level for the instant offense." U.S.S.G. § 5G1.3(b). Relevant conduct includes all acts committed by the defendant for which he is to be held accountable in determining the applicable guideline range. U.S.S.G. § 1B1.3(a) & cmt. 1. Although the Guidelines are now "effectively advisory," United States v. Booker, 543 U.S. 220, 245 (2005), the district court is nevertheless "required to account for [§ 5G1.3(b) where it applies] and, absent a variance based on the § 3553(a) factors, impose a concurrent term." Kieffer, 681 F.3d at 1161.
Here, the PSR applied an 8-level increase to Defendant's base offense level, as "the loss involved was more than $70,000, but less than $120,001," and a 2-level increase, "as the offense of conviction, including relevant conduct, involved 10 or more victims, but less than 50." (emphasis added). These enhancements resulted from the harm caused by the scheme underlying the instant wire fraud offenses, including the burglaries and thefts for which Defendant is serving his undischarged state sentence. Defendant's undischarged state sentence therefore resulted from relevant conduct to the...
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