UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5076
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARCIL ANTONIO SMITH, a/k/a Tony, a/k/a Tony Smith, a/k/a
Fat Cat,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:95-cr-00081-F-1)
Submitted: October 29, 2010 Decided: November 19, 2010
Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcil Antonio Smith appeals the thirty-six-month
sentence imposed by the district court upon revocation of his
supervised release. We previously vacated a sixty-month
revocation sentence and remanded for resentencing because the
district court upwardly departed from the five-to-eleven month
advisory range based on a finding that Smith had twice
previously been accorded leniency during revocation proceedings
after the court found that Smith had engaged in criminal conduct
including the use of marijuana. Because the district court had
not found that Smith used marijuana and had found only one prior
violation of the terms of his supervision, the Government
conceded error, and we remanded for resentencing. United
States v. Smith, No. 09-4246 (4th Cir. July 9, 2009)
(unpublished order).
On remand, the district court again upwardly departed
from the advisory guideline range and explained its departure by
reference to the leniency that it twice afforded Smith and that
Smith continued to engage in criminal conduct. The court also
stated that Smith continued to disregard the conditions of his
supervision and that “no amount or level of supervision [ ]
could insure the safety of the community from the harms of this
defendant.” The district court explained that the only criminal
conduct for which it found a violation of supervision was
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Smith’s driving after his license was revoked. However, the
court also relied on the fact that Smith had been in and out of
prison since age 16, his criminal history — including
convictions for conspiracy to sell and deliver cocaine and
resisting a public officer — and the leniency allowed when,
“[i]n 2007, Smith appeared before this court on two separate
occasions for revocation hearings.”
On appeal from the thirty-six-month revocation
sentence, Smith contends that the district court made the same
error after remand as that which resulted in the remand —
erroneously finding that the court had twice found Smith in
violation of his supervised release and yet afforded him
leniency by continuing his supervision.
We will affirm a sentence imposed after revocation of
supervised release if it is within the applicable statutory
maximum and is not plainly unreasonable. United States v.
Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). However,
only if we conclude that a sentence is procedurally or
substantively unreasonable will we consider whether the sentence
is plainly unreasonable. Id. at 439.
During the revocation proceeding, Smith requested a
sentence within the advisory guideline range, or at least a
lesser departure. Because Smith requested a sentence different
than the one imposed, any error by the district court must
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result in a reversal unless the error is harmless. See United
States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010).
On remand, Smith’s counsel repeatedly informed the
district court that no violation was found during Smith’s second
revocation hearing in 2007. In providing its reasons for
departing upward to thirty-six months, the district court stated
that Smith was twice afforded leniency in revocation proceedings
in 2007. However, the district court’s overall findings in
support of the upward departure differed after remand from those
that resulted in the remand. Notably, in the prior ruling, the
district court found that Smith had committed violations on two
prior occasions, with one being for use of marijuana. Based on
that finding and others, the district court departed upward to
sixty months. Here, with slightly modified findings, but still
stating that the court twice afforded Smith leniency, the court
sentenced Smith to thirty-six months.
In light of the totality of the district court’s
findings, including Smith’s recidivism, his involvement with
drugs, his lack of respect for authority, and the fact that he
received a significant downward departure at his original
sentence, and the district court’s conclusion that “no amount or
level of supervision [ ] could insure the safety of the
community from the harm of [Smith,]” we conclude that any error
by the court in stating that Smith was twice afforded leniency
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did not affect the length of his sentence, and therefore was
harmless. Further, we hold that the thirty-six-month sentence
imposed upon Smith’s revocation was not clearly unreasonable,
especially when considered in light of the court’s findings and
the fact that Smith received a downward departure from the
guideline range determined for his conviction on the underlying
offense. See U.S. Sentencing Guidelines Manual § 7B1.4, p.s.,
comment. (n.4) (“When the original sentence was the result of a
downward departure (e.g., as a reward for substantial
assistance), . . . an upward departure may be warranted.”).
Accordingly, we affirm the thirty-six-month sentence
imposed by the district court. 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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