United States v. Smith

• Decision Date: 07 April 2006
• Docket Number: No. 05-1725.,05-1725.
• Citation: 445 F.3d 1
• Parties: UNITED STATES of America, Appellant, v. COREY SMITH, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

445 F.3d 1

UNITED STATES of America, Appellant, v. COREY SMITH, Defendant, Appellee.

No. 05-1725.

United States Court of Appeals, First Circuit.

Heard February 10, 2006.

Decided April 7, 2006.

Patrick M. Hamilton, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellant.

Jonathan Shapiro with whom Stern, Shapiro, Weissberg & Garin, LLP was on brief, for appellee.

Before BOUDIN, Chief Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

BOUDIN, Chief Judge.

Corey Smith pled guilty to six counts of crack distribution and one count of conspiring to sell crack. Applying the sentencing guidelines, the district court calculated Smith's sentencing range to be 100-125 months of imprisonment, but then sentenced Smith to 46 months of imprisonment (followed by six years of supervised release). The government now appeals, arguing that Smith's sentence is unreasonably low.

In October and November of 2003, Smith — who was twenty-one years old at the time — facilitated four sales and made three direct sales of crack cocaine to Adolfo Brito, an undercover police officer. All of the transactions, save perhaps one, took place within 1,000 feet of either the George A. Lewis Middle School or the Little Scobie Playground. Smith was arrested on April 15, 2004, and eventually pled guilty to six counts of crack distribution and one count of conspiring to sell crack. 21 U.S.C. § 841(a) (2000).

Soon after his arrest, Smith was released to an in-patient drug treatment program at Spectrum House and successfully completed the initial treatment program. In January 2005, after his guilty plea, he was transferred to a "sober house" run by the South Middlesex Opportunity Council. After a series of violations of the sober house's rules — including staying out without authorization — Smith's release was revoked by a magistrate judge on February 8, 2005, and he was thereafter detained until April 19, 2005, when his sentence was imposed.

The pre-sentence report calculated Smith's total offense level as 25, based on the quantity of crack (14.25 grams), the proximity of his offenses to a school and playground, and Smith's acceptance of responsibility. Because of prior convictions for various offenses, including the possession of marijuana with the intent to distribute, Smith had a criminal history category of V (based on eleven criminal history points).¹

The probation officer found no basis for a downward departure under the guidelines. This meant that Smith's guideline sentencing range was 100 to 125 months. However, the sentencing occurred after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), so the district court was not restricted to a guideline sentence. It appears that the probation officer recommended a below-guideline sentence of sixty months based on considerations such as Smith's limited role in the offenses, his rehabilitation from his drug habit, and the allegedly minor nature of his prior offenses.

After hearing argument from the government and defense counsel, and after an allocution by the defendant, the district judge (over the government's objection) sentenced Smith to 46 months in prison followed by six years of supervised release, and recommended drug treatment for Smith while in prison. In explaining the sentence, the district judge addressed Smith as follows:

I think you're a man who has done wrong things, gotten in trouble, find yourself in a fix, but you're young and you may turn around and I'd like to see you turn around rather than get crushed....

Against you is the nature of the offense that you committed, an aggravated selling of controlled substance regularly in a location close to a school, and although I don't suppose you sat and thought about whether it's close to a school or not, I'm sure you knew there were a lot of little kids in that area, and that's a hell of a place to be selling cocaine, and the law makes it more of an offense, but in your favor is the fact that you were involved in the offense for a limited period of time and [d]o not appear to have been a leader. You appear to have committed the crime to support your drug habit.

While on pretrial release you did participate in drug abuse treatment and, for the most part, you received positive reports, although I guess you had a couple of slips, didn't you? And during pretrial release, you did obtain employment.

Bearing all these things in mind and the requirements of the statute that the sentence imposed be serious — I mean, be sufficient to take into consideration the seriousness of the offense, the protection of society, your own needs to improve and to make sure that the sentence is sufficient but not excessive, and bearing in mind that the Probation Department concludes that in accordance with this statute, a sentence substantially below the guidelines is appropriate. I'm imposing the same sentence on you as I have imposed on the two defendants in this case who have appeared before me already, although that sentence is somewhat below what the probation guideline recommends in your case.

In Booker, the Supreme Court held that mandatory guidelines based on judge-made findings violated the Sixth Amendment, but, after a severance analysis, ruled that the guidelines should be treated as "effectively advisory." 125 S.Ct. at 750-52, 757. The Court further stated that sentences would be reviewable for "reasonableness," and that this review would apply regardless of whether sentences fell within the advisory guidelines range. Id. at 765-66.

The sentencing court's discretion remains constrained by 18 U.S.C. § 3553(a) (2000), which requires courts to consider a number of factors in imposing sentences, United States v. Pho, 433 F.3d 53, 61-62 (1st Cir.2006), including "the nature and circumstances of the offense and the history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1), "the need for the sentence imposed," id. § 3553(a)(2),² and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," id. § 3553(a)(6).

The statute also requires courts to consider the sentencing range established by the guidelines. 18 U.S.C. § 3553(a)(4); accord Booker, 125 S.Ct. at 764-65. In United States v. Jiménez-Beltre, 440 F.3d 514 (1st. Cir.2006) (en banc), this court stated that the guidelines remained "an important consideration" because they represented the only "integration of the multiple factors" identified in the statute, often reflected past practice, and bore the imprimatur of the expert agency charged with developing them. Id. at 518 (emphasis omitted).

For the same reasons, we said that a district court should normally begin with a guideline calculation, and that after considering departures, the district court should decide whether "other factors" (beyond the guidelines) warranted an ultimate sentence above or below the guideline range. Jiménez-Beltre, 440 F.3d 514, 518. As for review for reasonableness, we stressed the need for "a plausible explanation and a defensible overall result." Id. at 519. The "within the range" sentence involved in Jiménez-Beltre was easily affirmed. Id. at 518-19.

The present case is more difficult. The sentence is not a modest variance from the guideline range, but less than half the minimum of the range. "[T]he farther the judge's sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed." United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005) (Posner, J.). However, circumstances may make a major variance reasonable.

Here, the district court relied on six factors to distinguish this case: Smith's youth; his involvement in the offense "for a limited period of time"; the fact that Smith did not "appear to have been a leader"; the fact that Smith "appear[ed] to have committed the crime to support [his] drug habit"; Smith's participation in drug abuse treatment and his subsequent employment; and the probation officer's suggestion that a "sentence substantially below the guidelines is appropriate."³

The government first argues that the district court committed legal error because some of the factors relied upon — such as age, drug use, lack of a leadership role, and post-offense rehabilitation — are "either discouraged or prohibited bases for departure" under the sentencing guidelines and circuit precedent. Legal errors are reviewed de novo and are themselves a basis for remand, Pho, 433 F.3d at 60-61, unless the error had no effect upon the sentence.

For the most part, the Commission's decision to discourage or exclude a factor seemingly rested either on a doubt whether the factor had much relevance to the statutory goals of sentencing or a concern that the factor was of a kind that tended to promote the inequality in sentencing that the guidelines aimed to reduce. U.S.S.G § 5H1.1, intro. cmt. (2005); cf. id. § 5K2.0, cmt. (backg'd). But, as we explained in Jiménez-Beltre, the guidelines are generalizations; the benefit of advisory guidelines is the room allowed for finer tuning. 440 F.3d 514, 2006 WL 562154, at *3.

That a factor is discouraged or forbidden under the guidelines does not automatically make it irrelevant when a court is weighing the statutory factors apart from the guidelines. The guidelines — being advisory — are no longer decisive as to factors any more than as to results. About the best one can say for the government's argument is that reliance on a discounted or excluded factor may, like the extent of the variance, have some bearing on reasonableness.

The government also argues that the district court erred in relying on the pre-sentence recommendation of a sentence substantially below the guidelines range, contending...