United States Court of Appeals
For the First Circuit
No. 07-1684
UNITED STATES OF AMERICA,
Appellee,
v.
Carl Smith,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Circuit Judge,
and Cudahy,* Senior Circuit Judge.
Christopher R. Goddu, Assistant Federal Public Defender, on
brief for appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney, and
Thomas P. Colantuono, United States Attorney, on brief for
appellee.
July 2, 2008
*
Of the Seventh Circuit, sitting by designation.
Cudahy, Circuit Judge. In 2005, Carl Smith was charged
with two counts of distribution of cocaine and two counts of
distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1).
After a two day trial, a jury found Smith guilty of three of the
four counts. In the presentence report (PSR), the probation office
set Smith’s base offense level at 18, but because Smith’s criminal
history included two burglary convictions, which are considered
crimes of violence under the guidelines, he was deemed to be a
career offender. See U.S.S.G. §§ 4B1.1, 4B1.2. His career
offender status yielded an adjusted offense level of 32. He had a
criminal history score of 17 and a criminal history category of VI.
A total offense level of 32 and a criminal history category of VI
yielded a guideline sentencing range (GSR) of 210 to 262 months.
Smith filed a motion for a downward departure under
U.S.S.G. § 4A1.3(b) on the grounds that his criminal history
category over-represented the seriousness of his predicate
offenses. He also requested a variance pursuant to 18 U.S.C.
§ 3553(a), arguing that the non-violent nature of his crimes as
well as his personal characteristics justified a below-guidelines
sentence.1 At the sentencing hearing, the district court
1
Smith objected to the PSR on the grounds that the 1.8
grams of cocaine that were at issue in the count of the indictment
of which he was acquitted should not be included in determining his
base offense level. Because the inclusion of this acquitted
conduct did not affect his base offense level or his career
offender status, the district court did not act upon Smith’s
objection.
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acknowledged that the guideline range resulting from Smith’s career
offender status was high, but concluded that Smith had failed to
establish the existence of any mitigating factors. The court
sentenced Smith to 210 months imprisonment with a three-year term
of supervised release. Smith appeals his sentence.
We review Smith’s sentence for reasonableness. United
States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005); United States v. Deppe, 509 F.3d 54, 62 (1st Cir.
2007). Because the guidelines are advisory, Booker, 543 U.S. at
260-62, 125 S. Ct. 738, a sentencing court may not presume the
reasonableness of a sentence that falls within the guideline range.
Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 596-97, 169 L.
Ed. 2d 445 (2007). But Booker and Gall do not require a sentencing
court to jettison the guidelines and commence the sentencing
enterprise from scratch. Instead, we have indicated that
sentencing courts should follow the protocol we outlined in United
States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006) (en banc).
First, the court should calculate the GSR, including any
appropriate departures. After calculating the GSR, the court
should consider the factors set forth in 18 U.S.C. § 3553(a) to
determine whether a sentence outside the guideline range is
appropriate. Finally, the court must determine what sentence is
appropriate and explain its reasoning. Id. at 518-19; see also
United States v. Gilman, 478 F.3d 440, 445 (1st Cir. 2007). The
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court should select a sentence that is "sufficient, but not greater
than necessary," to achieve the goals of sentencing. United States
v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006) (quoting 18 U.S.C.
§ 3553(a)). If the court has calculated the GSR correctly and has
supplied a plausible explanation for the sentence imposed, we
generally defer to the district court’s judgment. United States v.
Innarelli, 524 F.3d 286, 292 (1st Cir. 2008). Smith’s sentence,
while substantial, is at the low end of the guideline range and
thus, he carries a heavy burden in attempting to persuade us that
his sentence is unreasonable. Id.; United States v. Pelletier, 469
F.3d 194, 204 (1st Cir. 2006).
Smith does not argue that the district court erred in
calculating the GSR. Rather, he accuses the district court of
paying lip service to the advisory nature of the guidelines while
treating the GSR as presumptively reasonable. But contrary to
Smith’s assertions, the record shows that the court understood its
discretion to depart from the GSR.
At sentencing, Smith’s attorney argued that although the
burglaries that drove Smith’s career offender status are considered
crimes of violence under the guidelines, Smith had not actually
used violence in perpetrating them and thus, Smith’s criminal
history was less serious than the guidelines’ categorical treatment
implied. The court disagreed, emphasizing that Smith’s career
offender status was based on his commission of "serious offenses,
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burglaries of homes and so forth." The court considered Smith’s
exhortation to "take a more particularized view of the prior
convictions in the case rather than taking a categorical view," and
replied,
Well, I was taking a particularized view, and
home burglaries, I mean, I just disagree with
you, I don’t find those to be in fact as
opposed to categorically non-violent offenses,
those are particularly violent offenses in
that they are fraught with danger to the
persons who live in those homes.
Despite the fact that the sentencing judge clearly
addressed Smith’s challenge to the severity of his predicate
offenses, Smith urges us to conclude that he did not realize he
could depart from the guidelines because he stated that he was
"hamstrung by Congress." We are not persuaded that this comment
holds the significance Smith ascribes to it, for in the very next
breath, the judge made clear that he was "[n]ot hamstrung by the
guidelines at all. The guidelines are voluntary." It is clear that
the judge did not feel bound to impose a sentence within the GSR.
He merely recognized that Smith’s GSR resulted from his career
offender status as defined by Congress, and, as we have observed,
a properly-calculated GSR is an appropriate point from which to
embark on the task of sentencing. Dixon, 449 F.3d at 204. The
record shows that the judge understood that he could depart from
the GSR yielded by Smith’s career offender status and we have no
quarrel with his conclusion that Smith’s prior burglaries of homes
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were serious crimes.
Smith also accuses the district court of failing to
adequately consider other proffered mitigating factors. Although
"a sentencing court is not required to address frontally every
argument advanced by the parties, [or] dissect every factor made
relevant by 18 U.S.C. § 3553," United States v. Turbides-Leonardo,
468 F.3d 34, 40-41 (1st Cir. 2006), cert. denied, ___ U.S. ___, 127
S. Ct. 3064, 168 L. Ed. 2d 773 (2007), in this case, the court
carefully attended to each of the mitigating factors put forth by
Smith. The court observed that Smith had been convicted of "serious
drug transactions" notwithstanding Smith’s assertion that his
offense of conviction involved small quantities of drugs. The
court also considered Smith’s purported mental and emotional
problems, noting that Smith met the diagnostic criteria for
malingering and concluding that Smith’s anti-social personality
disorder "militates in favor of incarceration." Smith also argued
that his drug addiction was a mitigating factor. Although the
court rejected this argument, it recommended to the Bureau of
Prisons that Smith participate in drug education and treatment
programs. In sum, the record belies Smith’s suggestion that the
court undervalued the § 3553(a) factors.
Finally, Smith contends that the court did not consider
whether a 210-month sentence was greater than necessary to achieve
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the goals of sentencing as set forth in 18 U.S.C. § 3553(a)(2).2
A court’s explanation of the sentence imposed is adequate if "it
sufficiently shows a thoughtful exercise of the court's sentencing
responsibility and a degree of care and individualized attention
appropriate to the solemnity of the sentencing task." United
States v. Vázquez-Molina, 389 F.3d 54, 59 (1st Cir.2004), vacated
on other grounds, 544 U.S. 946, 125 S. Ct. 1713, 161 L. Ed. 2d 520
(2005). In the present case, the sentencing judge considered all
of Smith’s arguments for leniency and explained that the sentence
he chose is sufficiently severe to account for the offenses of
conviction and "to protect the public from the defendant’s likely
recidivism." The court "adequately explained its reasons for . .
. declining to vary from the guidelines," United States v.
Scherrer, 444 F.3d 91, 93 (1st Cir. 2006) (en banc), cert. denied,
__ U.S. ___, 127 S. Ct. 927, 166 L. Ed. 2d 714 (2007), and we
discern no principled reason for concluding that the sentence
imposed -- at the lowest end of the GSR -- is implausible.
Accordingly, the sentence is AFFIRMED.
2
18 U.S.C. § 3553(a)(2) states that a court should
consider whether a particular sentence reflects the seriousness of
the offense, will deter criminal conduct, will protect the public
from further crimes and will "provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner."
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