United States v. Smith

Opinion

24-940 United States v. Smith UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of March, two thousand twenty-five.

PRESENT: REENA RAGGI, BETH ROBINSON, ALISON J. NATHAN, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 24-940

DARREN SMITH,

Defendant-Appellant. _________________________________________

FOR APPELLANT: LANCE A. CLARKE (Ethan Van Buren, on the brief), Hamilton Clarke, LLP, New York, NY. FOR APPELLEE: JAMES LIGTENBERG (Shiva H. Logarajah, Kevin T. Sullivan, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from a criminal judgment entered in the United States District

Court for the Southern District of New York (Halpern, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on April 3, 2024, is

AFFIRMED.

Defendant-Appellant Darren Smith, stands convicted following a jury trial

of (1) assaulting, resisting, or interfering with a designated federal officer in or on

account of the performance of his official duties, see 18 U.S.C. §§ 111(a)(1), 111(b),

and 1114 (“Count Two”); (2) using a firearm in relation to a crime of violence, see

id. § 924(c) (“Count Three”); and (3) being a felon in possession of a firearm, see

id. § 922(g)(1) (“Count Four”). 1 He challenges his sentence to an aggregate 230

months of imprisonment as both procedurally and substantively unreasonable.

1 Count One charged Smith with the attempted murder of a federal officer. See 18 U.S.C. § 1114(3). When the jury was unable to reach a verdict on that count, the district court declared a mistrial and subsequently dismissed the charge.

2 We review such challenges under “a particularly deferential form of

abuse-of-discretion review.” United States v. Davis, 82 F.4th 190, 195–96 (2d Cir.

2023). 2 We assume the parties’ familiarity with the underlying facts, procedural

history, and arguments on appeal, to which we refer only as necessary to explain

our decision to affirm.

In September 2020, when two Yonkers police officers attempted to stop

Smith for traffic violations, he drove off at a “high rate of speed,” twice driving

against the flow of oncoming traffic. App’x 132:12–16. Smith eventually got out

of his car and fled on foot with a gun in his hand. Several uniformed and

plainclothes officers in pursuit shouted at Smith to drop the gun. One pursuing

plainclothes officer, Yonkers Detective Brian Menton, had been federally

“deputized to perform the same duties as an FBI Special Agent.” Presentence

Investigation Report ¶ 10; see also App’x 148:7–7.

Smith initially ignored the officers’ commands and kept running with the

gun in his hand. Eventually, a uniformed officer tackled Smith to the ground,

and other officers, including Menton, came to help subdue Smith. As the officers

2 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

3 tried to secure his gun, Smith began firing it. Menton then grabbed the gun on

its side and pushed it down to the ground, at which point Smith fired it again in

the direction of numerous citizens and officers.

By the time Menton took the gun from Smith’s hands, Smith had fired his

weapon five times. In the encounter, Menton injured his hand and sprained his

knee.

I. Procedural Reasonableness

A district court commits “procedural error” if it improperly calculates the

Sentencing Guidelines range, treats the Guidelines as mandatory, or fails to

consider the sentencing factors set forth in 18 U.S.C. § 3553(a). Gall v. United

States, 552 U.S. 38, 51 (2007); see United States v. Chu, 714 F.3d 742, 746 (2d Cir.

2013).

A. Official Victim Enhancement, U.S.S.G. § 3A1.2

Sentencing Guideline § 3A1.2(b) (“Official Victim” enhancement) instructs

courts to apply a six-level enhancement if the victim of the crime was “a

government officer or employee” and “the offense of conviction”—here, the

assault underlying Count Two—was “motivated by such status.” U.S.S.G. §

3A1.2(a). “Motivated by such status” means that the offense “was motivated by

the fact that the victim was a government officer or employee.” Application

4 Note 3, U.S.S.G. § 3A1.2. The adjustment does not apply, for example, where the

offense is instead “motivated by a personal dispute.” Id.

Smith argues that the evidence was insufficient to show that he knew that

Menton, who was in an unmarked vehicle and in plain clothes during the

September 2020 incident, was a government officer; or that his assault was

motivated by Menton’s official status, rather than Smith’s desire to evade arrest.

Because Smith did not object to this enhancement at sentencing, we review

for plain error, which means Smith has to show, among other things, that any

claimed error was “clear or obvious.” United States v. Esteras, 102 F.4th 98, 104

(2d Cir. 2024).

Smith cannot meet this standard. The evidence submitted at trial and

recounted in the Presentence Investigation Report showed that Smith fled—first

in his vehicle and then on foot—from uniformed police officers who had

activated the siren of their vehicle. 3 Taken together with the evidence that,

several men, some in uniforms and some in plain clothes, continued the chase,

shouted for Smith to drop his gun, and finally subdued and disarmed him, the

3 Smith did not object to the factual statements contained in the Presentence Investigation Report. See App’x 549.

5 evidence was sufficient for the district court to apply the enhancement here. See

Esteras, 102 F.4th at 110 (explaining that facts relevant to the application of

Sentencing Guidelines need be established only by a preponderance of the

evidence); United States v. Salim, 549 F.3d 67, 76 (2d Cir. 2008) (no clear error in

finding that an attack was motivated by a victim’s status as a corrections officer

where the attack only occurred “as a result of this status”). In short, we see no

plain error in the district court’s application of the Official Victim enhancement

on this record.

B. Acceptance of Responsibility, U.S.S.G. § 3E1.1

Sentencing Guideline § 3E1.1 provides for a two-level reduction if “the

defendant clearly demonstrates acceptance of responsibility for [the] offense.”

U.S.S.G. § 3E1.1(a). The “adjustment is not intended to apply to a defendant who

puts the government to its burden of proof at trial by denying the essential

factual elements of guilt, is convicted, and only then admits guilt and expresses

remorse.” Application Note 2, U.S.S.G. § 3E1.1. But going to trial “does not

automatically preclude a defendant from consideration for such a reduction.” Id.

In “rare situations,” a defendant who, for example, “goes to trial to assert and

preserve issues that do not relate to factual guilt” may still be able to show

sufficient “acceptance of responsibility” to warrant the adjustment. Id. In such

6 situations, the acceptance-of-responsibility determination “will be based

primarily upon pre-trial statements and conduct.” Id.

Smith argues that the district court erred in denying him the adjustment

because at trial he did not deny his guilt as to Counts Two, Three, and Four, on

which he was convicted, but, instead, only challenged Count One, on which the

jury hung.

“Whether the defendant has accepted responsibility is a factual question,”

United States v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007), and the defendant bears the

burden of demonstrating eligibility for the adjustment, Chu, 714 F.3d at 747. A

court’s decision “not to grant a defendant a [§] 3E1.1 adjustment is entitled to

great deference on review” and will “not be disturbed unless it is without

foundation.” Taylor, 475 F.3d at 68.

The district court acted within its discretion in denying the reduction here.

Smith points to no “pre-trial statements [or] conduct” demonstrating clear

acceptance of responsibility for the crimes of conviction, only failed plea

negotiations. Application Note 2, U.S.S.G. § 3E1.1. As for trial, even if his

defense there focused on the attempted murder charge, Smith still went to trial

on the other charges and put the government to the burden of proving each one.

See United States v. Bodnar, 37 F.4th 833, 846 (2d Cir. 2022) (defendant did not

7 “clearly accept” responsibility where government was “still required to offer

evidence” and “fully prove” all counts charged). Thus, the district court

reasonably concluded that this was “not one of those rare cases in which a

defendant ha[d] clearly demonstrated full acceptance of responsibility despite

proceeding to trial.” App’x at 576.

C. Consideration of Conduct Underlying Count One

In arguing that the district court improperly relied on its view that Smith

intentionally discharged his gun at Menton despite the jury’s hung verdict on

Count One, Smith points to the following comments from the court when

pronouncing his sentence:

You know, the remorse here is not as crystal clear. Of course you don’t want to be here. Of course you’re sorry for whatever events caused you to appear before me and be charged and convicted of all of these things. But you’re clinging to the notion that, no matter what, you didn’t intend to kill anybody. You didn’t intend to kill anybody. The jury said they were hung on the issue of intent to kill, and I understand that, but this is horrible, horrific behavior and genuinely, genuinely, a person needs to be remorseful of this.

App’x at 583:18–84:1.

As Smith concedes, he did not object to these comments at sentencing and

we thus review for plain error. See Esteras, 102 F.4th at 104.

8 We identify no error here because Smith misreads the quoted language.

The district court made clear that for sentencing purposes it was not resolving the

question whether Smith intended to fire the gun. Rather, it emphasized that

regardless of whether Smith intended to kill anyone, the conduct for which he

was convicted was serious. As the court articulated, Smith “ran through the

streets of Yonkers with a handgun while numerous individuals were walking on

the sidewalks,” App’x 581:1–3, and “each and every step taken by” Smith that

day “was dangerous and serious,” id. 584:19–21.

Thus, even if we entertained Smith’s legal argument about Count One, his

supporting factual assertions are not supported by the record.

D. Treating Guidelines as Mandatory

Smith argues that the district court erred in treating the Sentencing

Guidelines as mandatory instead of conducting an individualized assessment of

the sentencing factors under 18 U.S.C. § 3553(a), and in giving too much weight

to aggravating factors and too little to mitigating factors. With respect to

aggravating factors, citing studies concerning deterrence and recidivism and

pointing to the cost of imprisonment, Smith argues that there is no benefit to

Smith or to society in keeping him incarcerated for more than ten years.

9 Smith’s first argument fails because “the law does not impose any rigorous

requirement of specific articulation on sentencing judges with respect to their

consideration of § 3553(a) factors.” United States v. Verkhoglyad, 516 F.3d 122, 131

(2d Cir. 2008). “[W]e will not assume a failure of consideration simply because a

district court fails to enumerate or discuss each § 3553(a) factor individually.” Id.

In fact, the district court discussed aggravating and mitigating § 3553(a) factors

at length, including, (1) the nature and circumstances of Smith’s offenses; (2) his

criminal history; (3) the need for specific and general deterrence; (4) his personal

history and characteristics, including his upbringing; (5) his mental and physical

health challenges; (6) his child; (7) his graduation from high school despite

personal obstacles and (8) the conditions of confinement during the COVID-19

pandemic. In short, contrary to Smith’s argument, the record shows that the

court conducted an individualized assessment and considered the § 3553(a)

factors.

As to Smith’s second argument, “the requirement to consider § 3553(a)

factors is not synonymous with any requirement that a particular factor be given

determinative or dispositive weight in the identification of the appropriate

sentence.” Verkhoglyad, 516 F.3d at 131. “The particular weight to be afforded

aggravating and mitigating factors is a matter firmly committed to the discretion

10 of the sentencing judge,” and, on review, we seek “to ensure only that a factor

can bear the weight assigned it under the totality of circumstances in the case.”

United States v. Solis, 18 F.4th 395, 405 (2d Cir. 2021). Here, the district court

emphasized the seriousness of Smith’s offenses, including the fact that he fired

his gun near bystanders and several officers; Smith’s criminal history,

specifically, that this was his fourth criminal conviction and he had amassed nine

disciplinary incidents in jail while awaiting sentencing; and the need to deter

Smith and others from assaulting law enforcement officers. We identify no abuse

of discretion in the court’s decision to accord these factors more weight than

mitigating circumstances, including studies about deterrence, recidivism, and

costs.

II. Substantive Reasonableness

As to the substantive reasonableness of Smith’s sentence, “[w]e will . . . set

aside a district court’s substantive [sentencing] determination only in exceptional

cases where the trial court’s decision cannot be located within the range of

permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)

(en banc) (emphasis in original). “We do not review a sentence’s substantive

reasonableness to substitute our own judgment for the district court’s[.]” Davis,

82 F.4th at 200.

11 Here, the district court imposed a sentence within the applicable

Guidelines range, which “[i]n the overwhelming majority of cases . . . will fall

comfortably within the broad range of sentences that would be reasonable in the

particular circumstances.” United States v. Alcius, 952 F.3d 83, 88–89 (2d Cir.

2020). There is no reason to conclude otherwise in this case. Given the relevant

§ 3553(a) factors, the challenged Guidelines sentence fell “within the range of

permissible decisions” and was thus substantively reasonable. Cavera, 550 F.3d

at 189.

* * *

We have considered Smith’s remaining arguments and conclude that they

are without merit. Accordingly, the District Court’s judgment is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court