UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4207
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEO ANTONIO SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:08-cr-00101-1)
Submitted: May 13, 2010 Decided: June 7, 2010
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Samuel D. Marsh, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leo Antonio Smith pled guilty without a plea agreement
to distributing cocaine base (crack), in violation of 18 U.S.C.
§ 841(a)(1) (2006). The district court imposed a thirty-four-
month sentence, an upward variance from the sentencing
guidelines range of ten to sixteen months. On appeal, Smith
challenges the sentence, claiming that the district court
imposed a substantively unreasonable sentence and that the
district court should have used a beyond a reasonable doubt
standard to justify an upward variance. He also questions
whether the district court erred by failing to append a written
statement of reasons to its written judgment. We affirm.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010). After determining whether the district court properly
calculated the defendant’s advisory guideline range, this court
must decide whether the district court considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed the arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009) (holding that, while the “individualized assessment
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need not be elaborate or lengthy, . . . it must provide a
rationale tailored to the particular case . . . and [be]
adequate to permit meaningful appellate review”). Properly
preserved claims of procedural error are subject to harmless
error review. Lynn, 592 F.3d at 576. If the sentence is free
of significant procedural error, the appellate court reviews the
substantive reasonableness of the sentence. Id. at 575; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
In this case, we conclude that the district court did
not err in varying upward to a sentence of thirty-four months.
The court considered testimony from eleven witnesses and based
its decision on Smith’s extensive pending state criminal
charges, propensity for violence toward women, bond violations,
drug use, and gunplay. The court analyzed Smith’s behavior
within the framework of the § 3553(a) factors and determined
that the above sentence was necessary to promote respect for the
law, protect the public, and deter Smith’s criminal conduct, as
well as the criminal conduct of others.
We further find that the district court correctly
relied on a preponderance of the evidence standard when
considering the facts underlying its decision for an upward
variance. See United States v. Morris, 429 F.3d 65 (4th Cir.
2005). In the context of factual proof at sentencing, this
court relies on a preponderance of the evidence standard.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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