United States v. Smith

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 31, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-3086 (D.C. No. 2:16-CR-20022-JAR-1) JACOB L. SMITH, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges. _________________________________

Jacob Smith appeals following his convictions for bank robbery and

discharging a firearm during and in relation to a crime of violence. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Smith pled guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a)

and (d), and discharging a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A). Smith’s Presentence Investigation Report

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. recommended a Guidelines range of 97 to 121 months for the first count to run

consecutively with the mandatory 120 months for the second count. The government

sought an upward variance of six offense levels and an upward departure of four

additional levels. The defense sought a sentence on the lower end of the initial

Guidelines range.

The district court granted the government’s motion in part, upwardly varying

and departing to impose a sentence of 180 months on the first count and 120 on the

second. Smith now appeals.

II

Smith challenges his conviction under § 924(c)(1)(A), arguing that his bank

robbery conviction does not qualify as a crime of violence. Since the initiation of

Smith’s appeal, we have held that bank robbery does so qualify under the elements

clause of U.S.S.G. § 4B1.2(a)(1). United States v. McCranie, 889 F.3d 677, 679–81

(10th Cir. 2018). Because the elements clause of § 924 is identical to that contained

in the Guidelines, compare U.S.S.G. § 4B1.2(a)(1), with § 924(c)(3)(A), we reach the

same conclusion.

III

Smith also argues that the district court failed to adequately explain its

sentencing decision. The government contends that because Smith failed to object

below, we should review only for plain error. See United States v. Ruiz-Terrazas,

477 F.3d 1196, 1199 (10th Cir. 2007). Smith counters that the district court did not

give his counsel an opportunity to object. However, the district court did ask for

2 objections after tentatively announcing its sentencing decision. We thus review this

issue for plain error. Smith “must demonstrate that there is (1) an error; (2) that is

plain; (3) that affects substantial rights; and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Mann, 786

F.3d 1244, 1249 (10th Cir. 2015) (quotation omitted).

A sentencing court must “state in open court the reasons for its imposition of

the particular sentence.” 18 U.S.C. § 3553(c). The explanation must be adequate “to

allow for meaningful appellate review and to promote the perception of fair

sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). In the course of deciding

to impose a significant upward variance and departure in this case, the district court

noted the mitigating and aggravating factors the parties had cited, including Smith’s

age, the influence his co-defendants had over him, his history of mental health

problems, and the dangerous nature of his conduct. The court then ruled that a

sentence of 180 months for the first count and 120 months for the second would be

appropriate, in light of these countervailing facts. We conclude this explanation was

not plainly inadequate.

Smith additionally contends that the district court erred by failing to announce

the adjusted Guidelines range before imposing his sentence. But this omission

cannot be reasonably interpreted to have “seriously affect[ed] the fairness, integrity,

or public reputation of judicial proceedings.” Mann, 786 F.3d at 1249. Finally, the

court’s written statement of reasons—which indicated that one of the reasons for the

variance imposed was to avoid unwarranted sentencing disparities among

3 defendants—is not in conflict with the district court’s statement that it would not

vary upward by a further two levels to bring Smith’s sentence to his co-defendant’s.

IV

AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge