United States v. Conrad Vernon Smith

474 F.3d 888, 2007 U.S. App. LEXIS 1707, 2007 WL 188105
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 26, 2007
Docket05-4425
StatusPublished
Cited by79 cases

This text of 474 F.3d 888 (United States v. Conrad Vernon Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Conrad Vernon Smith, 474 F.3d 888, 2007 U.S. App. LEXIS 1707, 2007 WL 188105 (6th Cir. 2007).

Opinions

OPINION

KENNEDY, Circuit Judge.

Defendant Conrad Vernon Smith appeals his 57-month sentence, asserting that the sentence is unreasonable because the district judge, in calculating the sentence, (1) engaged in impermissible fact-finding and (2) failed to follow the methodology set forth in U.S.S.G § 4A1.3, which resulted in a sentence that was greater than was necessary to comply with the factors set forth in 18 U.S.C. § 3553(a). For the reasons set forth below we AFFIRM the sentence of the district court.

BACKGROUND

Defendant Conrad Vernon Smith (“Smith”) was pulled over by state police in Columbus, Ohio. When officers approached the vehicle he placed his hands outside the car and shouted, “I am not going to lie; I don’t have a driver’s license and there is a gun in the car.” That gun was a loaded, sawed-off shotgun resting on the driver’s side floorboard. The weapon was unregistered and the serial number had been obliterated. Smith was already a convicted felon.

A grand jury for the Southern District of Ohio returned a three-count indictment against Smith for (1) possession of an unregistered firearm, (2) possession of a firearm with an obliterated serial number, and (3) possession of a firearm as a convicted felon. Smith pleaded guilty to the third [891]*891count in exchange for dismissal of counts one and two.

A presentence investigation report was prepared, which determined that' Smith had an offense level of 12 and a criminal history category (CHC) of VI. It noted that the guideline range was 30-37 months. The parties did not object to the report.

The district court notified Smith that it was considering an upward departure based on U.S.S.G. § 4A1.3 because of his criminal history. Smith objected to an upward departure and requested a downward departure. At a sentencing hearing, the court overruled Smith’s objections and departed upward from the sentencing guidelines recommendation to offense level 16, CHC VI. The new advisory range, the court found, was 46-57 months imprisonment. The court thus imposed a sentence of 57 months. This timely appeal followed.

ANALYSIS

I. The District Court’s Findings of Fact

Smith argues that the district court exceeded its fact-finding prerogative by making “comparative and qualitative” findings; for example, Smith contests its finding that his criminal history was “egregious.” Appellant’s Br. at 12. He cites United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and argues that “the nature of the conviction[,] beyond the mere fact of the conviction,” must either be pleaded by the defendant or proved beyond a reasonable doubt.

We have previously noted that, “[c]on-clusions about ... prior convictions [are] treated the same before [and] after Booker. ...” United States v. Richardson, 437 F.3d 550, 555 (6th Cir.2006). Our analysis of the sentencing treatment of prior convictions begins with Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court distinguished between sentencing factors and separate criminal offenses. See United States v. Burgin, 388 F.3d 177, 183 (6th Cir.2004); see also United States v. Hollingsworth, 414 F.3d 621, 623 (6th Cir.2005) (following Burgin post-Booker). “The Supreme Court noted, among other things, that ‘the relevant statutory subject matter is recidivism,’ and recidivism ‘ — the prior commission of a serious crime — is as typical a sentencing factor as one might imagine.’ ” Burgin, 388 F.3d at 183 (internal citations omitted).

After Almendarez-Torres, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court held “other than the fact'of a prior criminal conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. As Smith properly notes in his brief,- after Apprendi, the Almendarez-Torres exception is narrow. Appellant’s Br. at 11. It is, however, wide enough to encompass the district court’s finding here.

In Burgin, the district court found that “prior felonies were committed on different occasions.” 388 F.3d at 186. The “different occasions” portion of that finding put the defendant under the reaches of the Armed Career Criminal Act, 18 U.S.C. § 924(e). As such, his sentence was significantly enhanced. We concluded “that the ‘different occasions’ requirement ... sufficiently comes within the exception in Apprendi for a prior conviction.... The ‘different occasions’ language involves the issue of recidivism, ‘a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ ” Burgin, 388 at 186 (citing Apprendi, 530 U.S. at 488, 120 S.Ct. 2348).

[892]*892Post-Booker, we continue to rely on Burgin. In United States v. Hollingsworth, 414 F.3d at 623, Joshua Hollings-worth challenged the district court’s finding that one of his prior convictions was for a “crime of violence,” which increased his sentence. We rejected his argument and expanded our holding in Burgin. “[Tjhe violent nature of a previous offense ‘is not a fact that pertains to the commission of the offense for which the defendant is presently charged,’ but rather a fact that pertains to a previous offense.” Id. at 623 (citing Burgin, 388 F.3d at 186).

Even more recently, we again found that a district judge’s determination that a previous crime was a crime of violence was permissible under the Sixth Amendment post-Booker. In United States v. Alford, 436 F.3d 677, 681 (6th Cir.2006), we explained that, “[a]s in Burgin, the district court in this instance was attempting to determine the scope of Alford’s recidivism, that is, whether he was responsible for multiple instances of crimes of violence or whether this was only one single, isolated incident.”

In the present case, the district judge examined Smith’s criminal history and was within his prerogative to consider it “extensive and egregious” and to consider these characteristics in determining whether to deviate from the guidelines range. He considered the history in an attempt to discern the “likelihood that [Smith’s] criminal lifestyle will continue.” Dist. Ct. Op. and Order at 6. As such, the determination falls under a “traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Apprendi 530 U.S. at 488, 120 S.Ct. 2348.

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Bluebook (online)
474 F.3d 888, 2007 U.S. App. LEXIS 1707, 2007 WL 188105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-conrad-vernon-smith-ca6-2007.