United States v. Hakeem Smith

721 F.3d 904, 2013 WL 3491296, 2013 U.S. App. LEXIS 14189
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 15, 2013
Docket13-1401
StatusPublished
Cited by43 cases

This text of 721 F.3d 904 (United States v. Hakeem Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Hakeem Smith, 721 F.3d 904, 2013 WL 3491296, 2013 U.S. App. LEXIS 14189 (7th Cir. 2013).

Opinion

PER CURIAM.

Hakeem Smith pleaded guilty to distributing, and possessing with intent to distribute, crack cocaine. See 21 U.S.C. § 841(a)(1). The district court sentenced Smith as a career offender, see U.S.S.G. § 4B1.1, to 151 months’ imprisonment, the bottom of the guidelines range. On appeal Smith offers two reasons that he has rebutted the presumption that his within-guidelines sentence is reasonable: First, the Sentencing Commission did not develop the career-offender guidelines using its standard empirical approach; rather it followed congressional mandate. Second, the nature of his offense and his personal characteristics make the sentence substantively unreasonable. Because a congres-sionally mandated guideline is entitled to a presumption of reasonableness, and because the sentence is otherwise reasonable, we affirm the judgment of the district court.

Background

The facts of Smith’s crimes are straightforward. In April 2012, police officers stopped a car in which Smith, then 22 years old, was a passenger. Smith fled on foot, but when police captured him, they found him with a clear plastic bag containing 9.9 grams of crack. About two weeks later, Smith sold $60 worth of crack (0.3 grams) to a confidential police source in a hand-to-hand transaction. He pleaded guilty to distribution and possession with intent to distribute crack.

*906 Given the amount of crack attributed to him (10.2 grams), Smith’s base offense level would have been 18, see U.S.S.G. § 2Dl.l(e)(ll), and his prior convictions would have placed him in criminal history category III. But Smith’s two prior convictions for aggravated fleeing from police (a felony), see 625 ILCS § 5/11-204.1, qualified as crimes of violence, see U.S.S.G. § 4B1.2(a); Welch v. United States, 604 F.3d 408, 425 (7th Cir.2010); United States v. Spells, 537 F.3d 743, 754 (7th Cir.2008), and because in this case he pleaded guilty to controlled substance offenses, see U.S.S.G. § 4B1.2(b), the probation officer classified him as a career offender. This classification resulted (after a three-level reduction for acceptance of responsibility, see id. § 3El.l(a), (b)) in a total offense level of 29 and a category VI criminal history. See id. at § 4Bl.l(a), (b). Smith’s guidelines range as a career offender was 151 to 188 months (as opposed to the range of 24 to 30 months that would have applied without the career-offender label).

Smith did not object to the probation officer’s guidelines calculations, but he argued for a below-guidelines sentence of 60 months’ imprisonment. He criticized the career-offender guidelines because they were not produced through the Sentencing Commission’s traditional empirical method, and he also argued that his guidelines range “greatly overstates the seriousness of ... [his] instant drug offense and predicate fleeing offenses” because his current offense involved only small quantities of drugs and his predicate offenses did not involve the use of a weapon or the type of deliberate violence of the crimes enumerated in U.S.S.G. § 4B1.2(a). He also contended that his “personal history and characteristics support a below guidelines sentence.” He pointed specifically to his youth, troubled childhood, and history of mental illness (including his diagnoses of depression, bipolar disorder, and “oppositional defiant disorder”).

The district court adopted the findings and guidelines calculations from the pre-sentence report and ultimately sentenced Smith to 151 months’ imprisonment. The court explained that, contrary to Smith’s arguments that he was not a dangerous criminal, at age 22 he already had been convicted of drug offenses and a domestic battery in which he choked a woman and kicked her in the head. These were serious offenses that, even though he did not use a weapon, still threatened family and community. His criminal history also demonstrated a pattern of twice attempting to escape and elude police, both by car, which put the public at “extraordinary risk” and, in this case, on foot, showing disrespect for the law. In addition, the court observed that, although Smith experienced mental health issues that may have diminished his capacity, he refuses to take prescribed medication and generally disdains authority. Therefore, the court concluded, a within-guidelines sentence was necessary to, among other things, protect the public and promote respect for the law.

Analysis

On appeal Smith challenges the substantive reasonableness of his sentence. Because Smith’s sentence is within the guidelines range, we apply a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Baker, 655 F.3d 677, 683 (7th Cir.2011). But Smith first contends that this presumption is rebutted because the career-offender guidelines were developed, not by using the Sentencing Commission’s traditional empirical approach (including the study of thousands of presentence reports), but by congressional mandate in 28 U.S.C. § 994(h). Smith points out that the *907 court in Rita allowed a presumption of reasonableness because, when the Commission uses its empirical approach, “it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of a sentence that might achieve 18 U.S.C. § 3553(a)’s objectives.” 551 U.S. at 350, 127 S.Ct. 2456. Thus, Smith asserts, “the absence of such an empirical basis for a particular guideline results in the absence of the inference that it produces” a reasonable sentence.

We have not yet addressed Smith’s argument that, because the career-offender guideline is not empirically based, Rita’s deference to the Commission’s judgment does not apply and, therefore, no presumption of reasonableness arises. But in the context of the child-pornography guidelines, we have rejected the similar argument that the presumption vanishes if the guideline is not based on empirical research. See, e.g., United States v. Schuster, 706 F.3d 800, 808-09 (7th Cir.2013); United States v. Reibel, 688 F.3d 868, 870-71 (7th Cir.2012). Other circuits have, however, considered Smith’s specific argument about the rationale of Rita. They have concluded that the presumption applies even to sentences based on guidelines developed through congressional mandates because a sentence that agrees with the judgment of Congress is likely reasonable as well. See United States v. Coleman,

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Bluebook (online)
721 F.3d 904, 2013 WL 3491296, 2013 U.S. App. LEXIS 14189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hakeem-smith-ca7-2013.