UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5038
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAPHEL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:09-cr-00054-H-3)
Submitted: September 24, 2013 Decided: October 7, 2013
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Kristine L. Fritz,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case returns to us following remand for
resentencing. Raphel Smith was convicted, following a jury
trial, of conspiracy to distribute and possess with intent to
distribute fifty or more grams of cocaine base (“Count One”), in
violation of 21 U.S.C. § 846 (2006); distribution of more than
five grams of cocaine base and a quantity of marijuana and
aiding and abetting the same (“Count Six”), and distribution of
a quantity of cocaine base and aiding and abetting the same
(“Count Fourteen”), both in violation of 21 U.S.C. § 841(a)(1)
(2006) and 18 U.S.C. § 2 (2006); and possession of a firearm in
furtherance of a drug trafficking offense (“Count Fifteen”), in
violation of 18 U.S.C. § 924(c)(1)(A) (2006). The district
court sentenced Smith to concurrent terms of 235 months’
imprisonment on Counts One, Six, and Fourteen, and a consecutive
sentence of 60 months on Count Fifteen. On appeal, we affirmed
Smith’s convictions, but we concluded that the district court
committed procedural sentencing error in imposing a Guidelines
enhancement for managerial role in the offense. We therefore
vacated Smith’s sentence and remanded for resentencing. United
States v. Smith, 494 F. App’x 319, 322-23 (4th Cir. 2012), cert.
denied, 133 S. Ct. 961 (2013).
On remand, the district court sentenced Smith to
concurrent terms of 168 months’ imprisonment on Counts One, Six,
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and Fourteen, and a consecutive sentence of 60 months’
imprisonment on Count Fifteen. Smith appeals, challenging his
convictions and the sentence imposed on remand. Because we
again find procedural sentencing error, we affirm in part,
vacate in part, and remand for resentencing.
In his appellate brief, Smith argues that the district
court erred in denying his motion for judgment of acquittal,
pursuant to Rule 29 of the Federal Rules of Criminal Procedure,
based on the sufficiency of the evidence to support each of his
counts of conviction. He also challenges the district court’s
drug weight calculation under the Guidelines. We considered,
and rejected, both of these arguments in Smith’s first appeal.
See Smith, 494 F. App’x at 321-22. Thus, these arguments fall
within the scope of the “law of the case doctrine.” See L.J. v.
Wilbon, 633 F.3d 297, 308 (4th Cir. 2011) (explaining doctrine).
While a district court is permitted to deviate from the law of
the case in limited, exceptional circumstances, United States v.
Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (describing
exceptions), Smith identifies no such exception that would
permit reconsideration of these issues in this appeal. We
therefore conclude that these arguments are foreclosed by our
prior opinion.
Smith also challenges the procedural and substantive
reasonableness of his sentence on remand. We review a sentence
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for reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 46 (2007). We
“must first ensure that the district court committed no
significant procedural error,” including improper calculation of
the Guidelines range, insufficient consideration of the 18
U.S.C. § 3553(a) (2006) factors, and inadequate explanation of
the sentence imposed. Gall, 552 U.S. at 51; see United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In
announcing a sentence, the district court is not required to
“robotically tick through § 3553(a)’s every subsection,
particularly when imposing a within-Guidelines sentence.”
United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011)
(internal quotation marks omitted). However, the court must
conduct an “individualized assessment justifying the sentence
imposed and rejection of arguments for a higher or lower
sentence based on § 3553.” Lynn, 592 F.3d at 584 (internal
quotation marks omitted). “Where the defendant or prosecutor
presents nonfrivolous reasons for imposing a different sentence
than that set forth in the advisory Guidelines, a district judge
should address the party’s arguments and explain why he has
rejected those arguments.” United States v. Carter, 564 F.3d
325, 328 (4th Cir. 2009) (internal quotation marks omitted).
The district court must provide sufficient explanation to
“demonstrate that it ‘considered the parties’ arguments and
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ha[d] a reasoned basis for exercising [its] own legal
decisionmaking authority.’” Lynn, 592 F.3d at 576 (quoting
Rita v. United States, 551 U.S. 338, 356 (2007)). Such
explanation is required to “promote the perception of fair
sentencing” and to permit “meaningful appellate review.” Gall,
552 U.S. at 50.
Smith asserts that on resentencing, the court erred in
failing to provide a sufficient explanation for its denial of
his request for a downward variance. We agree. In announcing
its sentence, the court provided scant explanation of its
reasons for denying the requested variance and for the
within-Guidelines sentence it ultimately selected. The court
provided only a brief response to Smith’s argument that his
limited criminal history warranted a downward variance sentence,
and it did not specifically address Smith’s assertion that his
criminal history score was exaggerated. Nor did the court
specifically address counsel’s arguments regarding Smith’s
history and characteristics, including Smith’s loving
relationships with his family and post-incarceration
rehabilitation. The court did not refer at any point to the
§ 3553(a) factors or indicate its calculus under those factors.
Thus, we conclude the court failed to conduct an adequate
individualized assessment of Smith’s case or to provide
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sufficient explanation for its decision to reject Smith’s
request for a variance.
Procedural sentencing error, including failure to
adequately explain the chosen sentence, is subject to review for
harmlessness. Lynn, 592 F.3d at 576. “Under that standard, the
government may avoid reversal only if it demonstrates that the
error did not have a substantial and injurious effect or
influence on the result,” such that “we can say with fair
assurance that the district court’s explicit consideration of
the defendant’s arguments would not have affected the sentence
imposed.” United States v. Boulware, 604 F.3d 832, 838 (4th
Cir. 2010) (internal quotation marks and alterations omitted).
Remand is appropriate when the absence of explanation prevents
us from “determin[ing] why the district court deemed the
sentence it imposed appropriate” or “produce[s] a record
insufficient to permit even . . . routine review for substantive
reasonableness.” Lynn, 592 F.3d at 582 (internal quotation
marks omitted).
We conclude that the Government has not met its burden
to establish harmless error. While the record clearly
establishes that the court considered at least some of Smith’s
arguments for a variant sentence, and the arguments Smith raised
were not particularly compelling, we cannot say with “fair
assurance” that the court would not have reached a different
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result had it more precisely addressed these arguments on the
record. 1 Perhaps more importantly in this case, the transcript
of the resentencing hearing is simply insufficient to permit
meaningful appellate review of the substantive reasonableness of
the sentence or to ensure that the court conducted the required
individualized assessment of Smith’s case.
Because we conclude there exists significant
procedural error in Smith’s sentence, we have no occasion to
address its substantive reasonableness. 2 See United States v.
Horton, 693 F.3d 463, 472 (4th Cir. 2012). Accordingly, we
affirm Smith’s convictions, vacate Smith’s sentence, and remand
1
We recognize that the district court more clearly
expressed its reluctance to vary downward from the Guidelines
range at the original sentencing hearing when addressing
arguments similar to those raised by Smith at resentencing.
Even assuming these prior statements could be used to support
the sentence imposed on remand, they do not fully address the
nonfrivolous arguments raised by Smith during the resentencing
hearing. Moreover, the court’s remarks at resentencing provide
no basis to infer that the court intended to adopt or
incorporate its prior rationale when refusing to vary downward
in resentencing Smith.
2
Insofar as Smith argues that the district court abused its
discretion in refusing to depart downward based on his argument
that his criminal history score was overstated, this issue is
not reviewable on appeal, as the record provides no basis to
question that the court properly understood its authority to
depart. United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008). Because we do not reach the substantive reasonableness
of the sentence, however, we again decline to express any view
on the propriety of the district court’s rejection of Smith’s
arguments for a downward variance.
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for resentencing to permit the court to provide an
individualized assessment and more thorough explanation of the
sentence imposed. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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