UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5002
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRENCE SMITH,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:05-cr-00061-JFM-6)
Submitted: September 9, 2009 Decided: September 18, 2009
Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas J. Saunders, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, A. David Copperthite, Kwame
J. Manley, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
We previously affirmed Terrence Smith’s convictions
for several crimes related to the firebombing of Edna McAbier’s
home but vacated his 960-month sentence and remanded for
resentencing. United States v. Harris, 498 F.3d 278, 281 (4th
Cir. 2007). On remand, the district court again sentenced Smith
to 960 months in prison. Smith now appeals, raising four
issues. We affirm.
I
According to Smith’s presentence report (PSR), Counts
One, Two, Three and Six (conspiracy to commit witness tampering,
two counts of witness tampering, and making firearms,
respectively), were grouped. See U.S. Sentencing Guidelines
Manual § 3D1.2(b) (2007). Because the object of the offense
would have constituted first degree murder, the cross-reference
for assault with intent to commit murder was applied, for a base
offense level of 33. See USSG §§ 2A2.1(a)(1), 2X1.1(a), 2K2.1.
There were no adjustments, and Smith’s total offense level for
these offenses was 33. His criminal history category was VI, and
his advisory Guidelines range for the group was 235-293 months.
With respect to Count Four (use of firearms in a crime
of violence), Smith was statutorily subject to a mandatory
minimum consecutive term of thirty years because the firearm
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used was a destructive device. See 18 U.S.C.
§§ 924(c)(1)(B)(ii), 924(c)(1)(D)(ii) (2006). Under the
applicable guideline, Smith’s guideline sentence was the minimum
term of imprisonment absent any Chapter Three or Four reductions
or enhancements. USSG § 2K2.4(4)(b). Because he had a
conviction other than for the § 924(c) offense, and because he
qualified as a career offender, USSG § 4B1.1(a), his advisory
Guidelines range for this count was determined by adding the
minimum consecutive penalty (30 years or 360 months) to the
minimum and maximum of the range (235-293 months) for the group
above. As a result, the advisory Guidelines range for Counts
One, Two, Three, Four, and Six was 595-653 months.
Smith was statutorily subject to a mandatory
consecutive minimum term of ten years for Count Five (using fire
and explosives in a felony). See 18 U.S.C. § 844(h) (2006).
His guideline range was the term of imprisonment required by
statute, less any Chapter Three or Four reductions or
enhancements. See USSG § 2K2.4(a). Adding this ten-year (120-
month) term to the range calculated above, Smith’s total
advisory Guidelines range was 715-773 months. United States v.
Harris, 498 F.3d at 293-94.
After hearing from counsel and Smith at resentencing,
the district court again imposed a 960-month sentence. In
imposing sentence, the court addressed each of the 18 U.S.C.
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§ 3553(a) (2006) sentencing factors. The court commented that
McAbier was an innocent citizen and community leader who
promoted respect for the law. Had she been killed during the
firebombing of her home, her murder would have been
“horrendous.” Smith’s crimes, the district court found, were
“beyond what civilized society will accept.” Smith was a
dangerous person from whom the public should be protected and
who should never be released from prison. The court concluded
that a sentence within the advisory Guidelines range was
insufficient to achieve the sentencing goals but that a 960-
month sentence would serve them instead.
II
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, ___, 128 S. Ct. 586, 597 (2007). In conducting our review,
we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence. . . .” Id. We next
“consider the substantive reasonableness of the sentence
imposed.” Id. At this stage, we “take into account the
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totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. “If the district
court decides to impose a sentence outside the Guidelines range,
it must ensure that its justification supports ‘the degree of
the variance.’” United States v. Evans, 526 F.3d 155, 161 (4th
Cir.), cert. denied, 129 S. Ct. 476 (2008) (quoting Gall, 128 S.
Ct. at 597).
III
Smith contends that he was improperly found to be a
career offender. Under the applicable guideline:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the
defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of
violence or a controlled substance offense.
USSG § 4B1.1(a). According to the PSR, Smith had the requisite
two previous felony convictions (for second degree assault and
possession with intent to distribute cocaine), and he otherwise
qualified as a career offender. Smith contends that, because
the two convictions were disposed of at one time, they should
have been treated as one sentence under USSG § 4A1.2(a)(2), and
he accordingly had only one qualifying felony for career
offender purposes.
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The relevant guideline provides, “Prior sentences
always are counted separately if the sentences were imposed for
offenses that were separated by an intervening arrest.” USSG
§ 4A1.2(a)(2). The PSR discloses that Smith was arrested on
February 28, 1997, after he assaulted a bus driver. He was
arrested on July 23, 1997, after he was observed selling crack
cocaine. Smith was sentenced on April 15, 1999, for these
offenses. Because the two offenses were separated by the
intervening arrest for the assault, it is irrelevant that they
were consolidated for sentencing. Smith qualified as a career
offender.
IV
The district court applied the cross-reference for
assault with intent to commit murder to the grouped offenses.
See USSG § 2A2.1(a)(1). The court found as a fact that the act
of hurling six Molotov cocktails at McAbier’s home--three at her
front door; three at the back door--revealed a clear intent to
block her escape from her burning home, and thereby to murder
her. Smith contends that, because McAbier was not injured, the
cross-reference for aggravated assault, USSG § 2A2.2, or minor
assault, USSG § 2A2.3, should have applied instead. We conclude
that the district court’s findings supporting application of the
cross-reference for assault with intent to commit murder are not
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clearly erroneous, and they will not be disturbed on appeal.
See United States v. Crump, 120 F.3d 462, 467-68 (4th Cir.
1997).
V
Although Smith recognizes that 18 U.S.C. §§ 924(c)
(1)(D)(ii) and 844(h) specifically require the imposition of
consecutive sentences, he argues that, after United States v.
Booker, 543 U.S. 220 (2005), sentencing courts may ignore
mandatory statutory language. Contrary to Smith’s assertion,
“Booker did nothing to alter the rule that judges cannot depart
below a statutorily required minimum sentence. . . . [A]
district judge has no discretion to impose a sentence outside of
the statutory range established by Congress for the offense of
conviction.” United States v. Robinson, 404 F.3d 850, 862 (4th
Cir. 2005) (emphasis in original).
VI
Smith’s final contention is that his 960-month
variance sentence is unreasonable and that he should have been
sentenced within his advisory Guidelines range. We conclude
after carefully reviewing the record that the district court
committed no “significant procedural error.” See Gall, 128 S.
Ct. at 597. Further, based on the totality of the
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circumstances, and giving “due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the
extent of the variance,” see id., we are convinced that the
sentence is substantively reasonable.
VII
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not
significantly aid the decisional process.
AFFIRMED
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