NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4481
UNITED STATES OF AMERICA
v.
STANFORD SMITH,
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 4-08-cr-00198-001)
District Judge: Hon. James F. McClure
Submitted under Third Circuit LAR 34.1(a)
on October 2, 2009
Before: AMBRO, GARTH and ROTH, Circuit Judges
(filed: May 6, 2010 )
OPINION
ROTH, Circuit Judge:
Stanford Smith appeals two issues arising from his sentencing in the Middle
District of Pennsylvania for illegally reentering the United States, in violation of 8 U.S.C.
§ 1326(a), 6 U.S.C. § 202(3) and (4), and 6 U.S.C. § 557. The first issue is whether the
District Court failed to take into account all of the sentencing factors set forth in 18
U.S.C. § 3553(a). The second issue is whether the District Court violated Smith’s Sixth
Amendment rights by imposing an inappropriately high enhancement to the sentence
recommended under the Sentencing Guidelines. The District Court had jurisdiction under
18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. For the reasons
discussed below, we will affirm.
Because the facts are well known to the parties, we will discuss them only briefly.
Stanford Smith pleaded guilty to a charge of illegally reentering the country. He had
previously been removed for drug-related offenses. The District Court found the
sentencing guideline range to be between 46 - 57 months, and it imposed a 57 month
sentence.
We find that the District Court did not abuse its discretion when considering the
relevant factors under 18 U.S.C. § 3553(a). See United States v. King, 454 F.3d 187, 194
(3d Cir. 2006) (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (“After
Booker, this Court must evaluate the reasonableness of a sentence in light of the factors in
18 U.S.C. § 3553(a) . . . . ‘To determine if the court acted reasonably in imposing the
resulting sentence, we must first be satisfied the court exercised its discretion by
considering the relevant factors.’”) “While a sentencing court must consider all of the §
3553(a) factors, it does not have to discuss and make findings as to each factor so long as
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the record otherwise makes clear that it took the factors into account.” United States v.
Starnes, 583 F.3d 196, 218 (3d Cir. 2009). The District Court considered Smith’s family
ties and the harsh consequences he would suffer as an illegal alien who would be
deported upon completing his sentence, and it ultimately concluded that despite these
factors, a longer sentence was justified.
Reviewing de novo the District Court’s application of the Sentencing Guidelines,
see United States v. Diaz, 592 F.3d 467, 470 (3d Cir. 2010), we find that the District
Court properly took into consideration Smith’s prior convictions when determining the
appropriate sentence enhancement. The District Court enhanced Smith’s base offense
level by sixteen points due to his prior two convictions for drug trafficking and firearm
possession. U.S.S.G. § 2L1.2(b)(1)(A). Smith alleges this was in error because the
indictment only stated that he had been found guilty of aggravated assault, which carries
an enhancement of eight points. U.S.S.G. § 2L1.2(b)(1)(C). Smith does not dispute that
his prior convictions would justify the sixteen point increase; rather, his argument is that
the government’s decision to only include “aggravated felony” in the plea agreement
precludes the District Court from applying anything but the aggravated felony
enhancement. We disagree. District Courts may rely upon past convictions when making
sentencing decisions, regardless of whether those convictions were in the indictment. See
United States v. Grier, 475 F.3d 556, 562 (3d Cir. 2007) (en banc) (“Judicial factfinding
in the course of selecting a sentence within the permissible range does not offend the
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Fifth and Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt.”)
For the reasons set forth above, we will affirm the judgment of the District Court.
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