United States v. Smith

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5179

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSEPH JEROME SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:04-cr-00003-FL-1)

Submitted: January 18, 2011 Decided: January 25, 2011

Before NIEMEYER, DUNCAN, and AGEE, 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Affirmed by unpublished per curiam opinion.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,
Jennifer P. May-Parker, Ethan A. Ontjes, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Joseph Jerome Smith appeals the sixty-month sentence

of imprisonment imposed by the district court after finding that

Smith violated his term of supervised release prohibiting

criminal conduct. Smith pled guilty to distributing five grams

or more of cocaine base, in violation of 21 U.S.C.A.

§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2009), and possession

of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (2006). ∗ On appeal, Smith argues

that the sixty-month sentence is excessive and plainly

unreasonable because the district court procedurally erred by

failing to render an individualized assessment because its

statement that Smith was a very dangerous person was unsupported

by the record. We disagree.

We will affirm a sentence imposed after revocation of

supervised release if it is within the prescribed statutory

range and not plainly unreasonable. United States v. Crudup,

461 F.3d 433, 439-40 (4th Cir. 2006). In determining whether a

sentence is plainly unreasonable, we first consider whether the

sentence imposed is unreasonable. Id. at 438. In making this

determination, we follow “the procedural and substantive

∗
Smith was subject to a statutory maximum term of
imprisonment of five years following a revocation of supervised
release. See 18 U.S.C. § 3583(e)(3) (2006).

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considerations that we employ in our review of original

sentences.” Id. at 438. In this inquiry, we take a more

deferential posture concerning issues of fact and the exercise

of discretion than reasonableness review of Guidelines

sentences. United States v. Moulden, 478 F.3d 652, 656 (4th

Cir. 2007). Only if we find the sentence procedurally or

substantively unreasonable, must we decide whether it is

“plainly” so. Id. at 657.

While a district court must consider Chapter Seven’s

policy statements and the statutory provisions applicable to

revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e) (2006),

the district court need not robotically tick through every

subsection, and it has broad discretion to revoke the previous

sentence and impose a term of imprisonment up to the statutory

maximum provided by § 3583(e)(3). Moulden, 478 F.3d at 656-57;

Crudup, 461 F.3d at 439. Moreover, while a district court must

provide a statement of the reasons for the sentence imposed, the

court “need not be as detailed or specific when imposing a

revocation sentence as it must be when imposing a post-

conviction sentence.” United States v. Thompson, 595 F.3d 544,

547 (4th Cir. 2010).

After reviewing the record, we conclude that the

district court’s assertion that Smith was a very dangerous

person was premised upon its finding that Smith’s repeated

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pattern of committing drug offenses indicated that he

disregarded the law. Smith’s contention that the district

court’s finding was unsupported by the record is inaccurate.

Thus, the district court did not procedurally err in determining

Smith’s sentence, which is not unreasonable.

Accordingly, we affirm Smith’s sentence. 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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