United States v. Barry Smith, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 20, 2022
• Docket: 21-13931
• Status: Unpublished

Opinion

USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-13931 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BARRY SMITH, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 3:20-cr-00016-TCB-RGV-1 ____________________ USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 2 of 13

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Before NEWSOM, GRANT, and BRASHER, Circuit Judges. PER CURIAM: Barry Smith appeals the above-guidelines 108-month sen- tence the district court imposed after he pleaded guilty to burglar- izing a federal firearms licensee. Smith argues that his sentence is both procedurally and substantively unreasonable. We disagree and affirm. I.

Smith pleaded guilty to one count of burglarizing FMJ Ar- mory, a federal firearms licensee, and stealing 52 firearms, in viola- tion of 18 U.S.C. § 922(u). Describing Smith’s criminal history, the presentence investigation report included that, in 2009, Smith pleaded guilty “to the lesser offense of Robbery” in Georgia after being initially charged with armed robbery. The report stated that Smith and his codefendants stole clothing by “spraying [the victim] with pepper spray and kicking her with their hands and feet.” Smith objected “to the narrative description,” of this paragraph of the re- port on the ground that it includes “false accusations” and “allega- tions beyond what Mr. Smith pleaded guilty to.” Smith’s objection did not specify what “allegations” or “false accusations” he dis- puted. The report also revealed that Smith was charged with armed robbery in 2011, for which he again “pled to the lesser included of- fense of Robbery.” According to the report, during the 2011 rob- bery, Smith’s co-defendants “used a hammer to take jewelry” from USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 3 of 13

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the victim. Smith did not object to the description of this offense. Smith also, according to the report, had “pending charges in Cobb County, Georgia,” because in 2019 Smith “used a rifle to take [the victim’s] Acura automobile, purse, cellular telephone, and keys.” Smith did not object to this paragraph of the report. In addition to these convictions and pending charges, the re- port stated that Smith had been arrested for—but not convicted of—aggravated assault in 2011 and for robbery and aggravated as- sault with a deadly weapon in 2019. Smith did not object to the report’s description of the 2011 arrest. And as to the 2019 arrests, Smith objected, without explanation, “to the allegations of th[e] conduct in th[e] paragraph,” which included that Smith stole a ve- hicle after pointing a gun at the driver. The report calculated Smith’s total offense level at 33 and gave him a criminal history score at V, yielding a guideline range of 210 to 262 months’ imprisonment. But after sustaining Smith’s objections to his base offense level and to his four-level enhance- ment for possessing a firearm during the commission of a felony, the district court announced an adjusted guidelines range of 57 to 71 months. After the district court resolved these guidelines objections at Smith’s sentencing hearing, the government made its Section 3353(a) argument, urging the court to impose the statutory ten- year maximum sentence. Relying on the above statements from the report, the government argued that Smith had a “history of en- gaging in violent crimes” and had shown an “escalation” of USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 4 of 13

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criminal conduct in recent years. And, given the large number of guns involved in his current crime, the government argued that Smith was being sentenced for “an extremely serious offense.” Fi- nally—noting that Smith already served five years in prison on a previous robbery conviction and committed the instant offense while on supervised release—the government argued that the max- imum sentence was necessary to promote deterrence and respect for the law. After setting forth its views, the district court found that “the government has shown that a maximum sentence is appropriate.” Nonetheless, the court sua sponte accounted for mitigating evi- dence raised in Smith’s sentencing memorandum regarding the harsh conditions of his post-conviction detention. Ultimately, the district court varied upward from the guideline range and sen- tenced Smith to 108 months’ imprisonment followed by 3 years of supervised release, instead of the statutory maximum 120 months the government recommended. Smith timely appealed his sentence, arguing that it is both procedurally and substantively unreasonable. II.

We review the procedural and substantive reasonableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 41 (2007). The party challenging the sentence bears the burden of showing unreasonableness. United States v. Trailer, 827 F.3d USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 5 of 13

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933, 936 (11th Cir. 2016) (citing United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)). III.

Smith argues that his sentence was procedurally unreasona- ble because the district court relied upon the government’s un- proven allegations that (1) his 2011 and 2019 robbery convictions involved weapons and violence; (2) his 2011 and 2019 arrests estab- lished an “escalation” of conduct, and the 2019 arrest involved the use of a firearm; and (3) he has pending charges in Cobb County, Georgia, for using a weapon to hijack a woman’s car. A party challenging the procedural unreasonableness of his sentence must show that the sentencing court committed “signifi- cant procedural error,” including by miscalculating the guideline range, treating the Sentencing Guidelines as mandatory, failing to consider the relevant sentencing factors set out in 18 U.S.C. § 3553(a), selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. Trailer, 827 F.3d at 936 (citing United States v. Cubero, 754 F.3d 888, 892 (11th Cir.2014)). The Section 3553(a) factors include, in relevant part, (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need to reflect the serious- ness of the offense, to promote respect for the law, and to provide just punishment for the offense; (4) the need for deterrence; (5) the need to protect the public; and (5) the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a). There is “[n]o limitation USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 6 of 13

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. . . on the information concerning the [defendant’s] background, character, and conduct” that the sentencing court may consider when weighing these factors. 18 U.S.C. § 3661; see also U.S.S.G. § 1B1.4. The district court’s sentence may be based on undisputed statements in the presentence report. United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004) (citing United States v. Saunders, 318 F.3d 1257, 1271 n.22 (11th Cir.2003)); Fed. R. Crim. P. 32(i)(3)(A). Statements contained in the report are considered un- disputed and admitted for sentencing purposes unless the defend- ant objects to them “with specificity and clarity.” United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009) (citing United States v. Bennett, 472 F.3d 825, 832 (11th Cir.2006)). “[V]ague assertions of inaccuracies are not sufficient to raise a factual dispute” as to state- ments in the report. United States v. Ramirez-Flores, 743 F.3d 816, 823 (11th Cir. 2014) (citing Bennett, 472 F.3d at 832). Only if the defendant launches a clear objection to specific facts in the report does the government bear the burden of proving those facts by a preponderance of the evidence. United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009) (citing United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997)). Absent a clear and specific objection, the sentencing court is permitted “to rely upon [statements in the presentence report] without error even if there is an absence of sup- porting evidence.” Beckles, 565 F.3d at 844 (11th Cir. 2009) (citing United States v. Hedges, 175 F.3d 1312, 1315 (11th Cir.1999)). USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 7 of 13

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Smith’s sentence is not procedurally unreasonable. First, the unobjected-to facts in the presentence report establish that Smith (1) had two robbery convictions, (2) he was originally indicted in both cases for armed robbery, (3) the allegations in those indict- ments involved the use of pepper spray and a hammer, and (4) Smith pleaded guilty to the lesser included offense of robbery for each crime. The district court was entitled to rely upon those un- disputed facts to determine that Smith had a violent criminal his- tory. Smith’s vague objection to the report’s “narrative descrip- tion” of his 2009 robbery on the ground that “it includes allegations beyond what [he] pleaded guilty to” and contains “false accusa- tions” lacks the specificity and clarity necessary to require the gov- ernment to proffer evidence. See, e.g., Bennett, 472 F.3d at 832, 83435. Second, the court did not abuse its discretion in relying on Smith’s 2011 aggravated assault arrest and 2019 armed robbery and aggravated assault arrests as evidence of Smith’s “escalating” crim- inal conduct. Smith did not object to the fact of these arrests. And his bare objection “to the allegations of th[e] conduct in th[e] para- graph” of the presentence report describing his 2019 arrests is too vague to dispute that paragraph’s statement that the conduct lead- ing to the arrests involved a firearm. See Ramirez-Flores, 743 F.3d at 82324 (“general objection to the factual and legal statements” in paragraph of presentence report insufficient to require government to proffer evidence to prove those statements). USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 8 of 13

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Third, Smith’s contention that the presentence report “con- tains no pending carjacking charge from Cobb County, nor any de- scription of Mr. Smith using a firearm in relation to such a charge” is mistaken. Paragraph 60 of the report clearly describes “pending charges in Cobb County, Georgia,” against Smith for “us[ing] a rifle to take [a victim’s] Acura automobile, purse, cellular telephone, and keys” in 2019. Because Smith never objected to the statements contained in this paragraph, the district court was entitled to rely on them in crafting its sentence. See, e.g., Beckles, 565 F.3d at 844 (citing Hedges, 175 F.3d at 1315). Because Smith failed to create a dispute of fact as to any of the government’s allegations, the district court committed no “sig- nificant procedural error” by relying on them at sentencing with- out additional evidentiary support. See Trailer, 827 F.3d at 936 (cit- ing Cubero, 754 F.3d at 892). This is so even for the arrests and charges for which Smith was not convicted. The sentencing court is entitled to account for such conduct when considering, as it must, a defendant’s history and characteristics under Section 3353(a). See United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006) (holding sentencing court may consider facts underlying acquitted conduct); United States v. Shaw, 560 F.3d 1230, 123241 (11th Cir. 2009) (affirming 83- month variance, partially relying on defendant’s numerous prior arrests). See also U.S.S.G. § 1B1.4 cmt. (“For example, if the defend- ant committed two robberies, but as part of a plea negotiation en- tered a guilty plea to only one, the robbery that was not taken into USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 9 of 13

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account by the guidelines . . . may provide a reason for an upward departure.”). IV.

Smith argues his above-guidelines sentence is substantively unreasonable because (1) the guidelines already account for Smith’s offense conduct and criminal history, (2) the district court placed improper weight on Smith’s criminal history, ignoring his mitigating personal history and the need to avoid unwarranted sen- tencing disparities, and (3) the district court lacked a compelling justification for its deviation from the guideline range given the “non-violent” nature of his burglary offense. We consider the totality of the circumstances when review- ing the substantive reasonableness of a sentence. Gall, 552 U.S. at 51. The party challenging the substantive unreasonableness of his sentence bears the considerable burden of showing that the district court (1) failed to consider Section 3553(a) factors “that were due significant weight” in the given case; (2) gave “significant weight to an improper or irrelevant factor”; or (3) committed “a clear error of judgment in considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quoting United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)). The district court is not required to explicitly address each of the Section 3553(a) factors or all the defendant’s mitigating evi- dence. United States v. Taylor, 997 F.3d 1348, 1354 (11th Cir. 2021) (citing United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007)). USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 10 of 13

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“An acknowledgement the district court has considered the defend- ant’s arguments and the § 3553(a) factors will suffice.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (citing United States v. Scott, 426 F.3d 1324, 1330 (11th Cir. 2005)). Further, “[t]he district court may vary upward [from the guidelines] based on con- duct that was already considered in calculating the guideline range.” Taylor, 997 F.3d at 1355 (citing United States v. Williams, 526 F.3d 1312, 1324 (11th Cir. 2008)).

The weight the district court accords to any one Section 3553(a) factor is a matter committed to its sound discretion, and the court is permitted to “attach ‘great weight’ to one factor over others.” Id. at 1354 (quoting United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015)). We will not “second guess the weight (or lack thereof) that the judge afforded to a given factor,” unless we are “left with the definite and firm conviction that the district court committed a clear error in judgment . . . by arriving at a sentence that lies outside the range of reasonable sentences dic- tated by the facts of the case.” Pugh, 515 F.3d at 1191 (quoting United States v. McBride, 511 F.3d 1293, 129798 (11th Cir. 2007))). But “[b]ecause that rarely happens, ‘it is only the rare sentence that will be substantively unreasonable.’” Rosales-Bruno, 789 F.3d at 1256 (quoting United States v. McQueen, 727 F.3d 1144, 1156 (11th Cir.2013)). When we review the substantive reasonableness of a sen- tence imposed outside the guideline range, we must be satisfied that the sentencing court applied the upward variance “after USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 11 of 13

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‘serious consideration’ . . . accompanied by a ‘sufficiently compel- ling’ justification.” United States v. Brown, 879 F.3d 1231, 124041 (11th Cir. 2018) (quoting Gall, 552 U.S. at 46, 50). But there is no presumption that sentences outside the guidelines are unreasona- ble, and we defer to the district court’s determination that the Sec- tion 3553(a) factors, on the whole, justify the extent of the variance. United States v. Turner, 626 F.3d 566, 57374 (11th Cir. 2010) (quo- tations omitted). Smith’s sentence is not substantively unreasonable. We ad- dress his three arguments in turn. First, in crafting an appropriate sentence, the district court was permitted to consider the aspects of Smith’s criminal history and the facts surrounding his crime that were accounted for in the guidelines calculation. See Taylor, 997 F.3d at 1355 (citing Wil- liams, 526 F.3d at 1324). The district court was thus correct in stat- ing that it was not required to “just ignore [those facts] when con- sidering what the sentence should be.” Further, Smith’s criminal history category accounted for only his prior convictions, not for the totality of his criminal history. Second, it was “not a clear error in judgment” for the district court to give “great weight” to Smith’s “substantial criminal his- tory” when weighing the relevant Section 3553(a) factors. See United States v. Early, 686 F.3d 1219, 1223 (11th Cir. 2012); Rosales- Bruno, 789 F.3d at 1263. The defendant’s personal history and the need to avoid unwarranted sentencing disparities are only two of many factors the district court must consider in imposing a USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 12 of 13

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sentence, and the sentencing court here acknowledged that it “carefully considered all of the[se] . . . factors.” That is all our prec- edent requires. See Gonzalez, 550 F.3d at 1324. Moreover, the district court explicitly accounted for mitigat- ing circumstances when it sua sponte considered the harsh condi- tions of Smith’s pretrial confinement. It relied on that mitigating circumstance to impose a sentence one year lower than the statu- tory maximum, which the court believed would otherwise be jus- tified. Cf. United States v. Valnor, 451 F.3d 744, 75152 (11th Cir. 2006) (the district court’s imposition of a sentence below the statu- tory maximum is indicative of reasonableness). The district court acted well within its discretion by basing its sentencing decision “primarily on the history and characteristics of the defendant,” the “incredibly violent” nature of his offense, and his “high risk of re- cidivism.” Third, the district court provided a sufficiently compelling justification for its upward variance. Far from the “non-violent” burglary Smith describes in his briefs, the district court believed his offense was “brazen,” “shocking,” and “incredibly violent,” given that it involved more than 50 firearms, at least four of which had been recovered in connection with other crimes across the coun- try—a fact unaccounted for by the guidelines. The district court recognized that such a crime “leads to the proliferation of firearms by people who use them to kill and steal from other people.” After engaging with the arguments presented by counsel, the district court believed the totality of Smith’s conduct and history indicates USCA11 Case: 21-13931 Document: 25-1 Date Filed: 12/20/2022 Page: 13 of 13

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that “he is willing to go to great lengths to . . . take from other people” and evinces “a high risk of recidivism.” Echoing the factors and purposes listed in Section 3553(a)(2), the sentencing court properly concluded that its sentence reflects the seriousness of Smith’s offense, affords adequate deterrence, and is necessary to protect the public. See 18 U.S.C. § 3553(a)(2). We give considerable deference to the district court’s reasoned decision that those factors justified the extent of the variance in this case. See Turner, 626 F.3d at 574. Smith’s arguments that his sentence is substantively unrea- sonable amount to a suggestion that we reweigh the Section 3553(a) sentencing factors for the district court. Because we have no “definite and firm conviction that the district court committed a clear error of judgment in weighing” those factors itself, we de- cline this invitation. See Irey, 612 F.3d at 1190 (en banc) (quoting Pugh, 515 F.3d at 1191). V.

For the foregoing reasons, we AFFIRM Smith’s conviction and sentence.