FILED
United States Court of Appeals
Tenth Circuit
April 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-1399
(D.C. No. 1:09-CR-00187-REB-1)
JEFFREY DAVID SMITH, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Defendant-Appellant Jeffrey David Smith pleaded guilty in federal district
court to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The
district court sentenced him to a term of imprisonment of 84 months, followed by
a three-year term of supervised release. He was ordered to pay restitution in the
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
amount of $3,200. He now appeals his sentence, contending that the 84-month
term of imprisonment was substantively unreasonable. We affirm.
BACKGROUND
In his plea agreement, Mr. Smith stipulated to the following facts
concerning his offense:
[O]n December 15, 2008, the defendant entered the Alpine Bank
branch located [at] 50891 Highway 6, Glenwood Springs, Colorado,
wearing a hooded sweatshirt with the hood up and a skull cap to hide
his identity. He went to the service desk where he wrote out a note
which he handed to the teller while at the same time raising the
sweatshirt to reveal what appeared to be a handgun in his waistband.
The teller gave him $20, $50, and $100 bills total[]ing $3200.00 from
the top drawer. The defendant then asked for the key to the vault and
when bank personnel were unable to produce it, he left the bank.
The defendant was identified by bank employees from a photographic
lineup. The defendant was tracked to Las Vegas, Nevada by his cell
phone where he was arrested by local authorities. During a search of
his hotel room, a BB pistol matching the [teller’s] description of the
firearm was found. In his interview, the defendant confirmed that he
had robbed the Alpine Bank with this same BB pistol. Alpine Bank’s
deposits are insured by the FDIC.
R., Vol. I at 9-10.
In the agreement, the Government agreed to recommend a sentence in the
bottom half of the applicable sentencing range and stipulated that Mr. Smith
should receive the maximum benefit for acceptance of responsibility. It was
agreed that either party could ask the sentencing court to depart from the
applicable guideline range at sentencing if that party felt there existed aggravating
or mitigating circumstances of a kind or degree not adequately taken into
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consideration in the guidelines. It was also understood that the sentencing court
would not be bound by any position of the parties in imposing sentence.
The Probation Department conducted a presentence investigation and
prepared a presentence investigation report and addendum (PSR). In the PSR, the
Probation Department calculated Mr. Smith’s Base Offense Level at 20. This
level was increased by two levels because property of a financial institution was
taken, and by three levels because a dangerous weapon was brandished or
possessed. It was reduced by three levels for acceptance of responsibility,
yielding a total offense level of 22.
In the six years prior to his guilty plea for the current offense, Mr. Smith
accumulated several prior criminal convictions involving property crimes,
including four felonies. This gave him a criminal history score of 12 points,
resulting in a Criminal History Category of V. Based on the total offense level
and the criminal history category, the guideline range for imprisonment calculated
in the PSR was 77 to 96 months.
At his sentencing hearing, Mr. Smith’s counsel sought a downward
variance to 57 months’ incarceration, a twenty-five percent variance below the
guideline range calculated in the PSR. Counsel argued that while both a
77-month sentence and a 57-month sentence were “sufficient,” 77 months was
greater than necessary. He argued that 77 months was more than the amount
necessary to send a message generally or specifically to Mr. Smith; that the extra
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time was not necessary to protect society from Mr. Smith; and that a sentence of
77 months would be 250 percent longer than his next most serious sentence in the
past. Counsel noted that Mr. Smith’s offenses were the result of his gambling
addiction; that he had a support system in place; and that he was a bright
individual who had begun writing about his gambling problem in the hope of
publication and of helping others. Mr. Smith also made a statement in allocution
in which he expressed remorse for the robbery and his intention never to commit
such a crime again. The PSR noted that he had written a letter apologizing to the
teller whom he had threatened.
The government objected to the proposed variance. The Assistant United
States Attorney (AUSA) opined that the factors cited by Mr. Smith’s counsel
formed an insufficient basis for downward variance, which could lead to
unwarranted sentencing disparities. The AUSA drew the court’s attention to
Mr. Smith’s total of five felony convictions, including the present offense. He
also noted that Mr. Smith had been offered a Salvation Army program to treat his
gambling problem but had rejected it because it took too long. Finally, he stated
the government approved of the PSR’s recommendation of a 77-month sentence,
at the bottom of the guideline range.
The sentencing judge then recited a list of statutorally-mandated factors
that he had considered in determining an appropriate sentence and which he
incorporated in his findings. See R. Vol. II, at 17-19. He adopted the PSR,
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including its guideline-sentencing calculations, and made specific findings
concerning the discrete sentencing factors contained in 18 U.S.C. § 3553(a)(1)
through (7). The judge noted that bank robbery “is inherently serious because of
its demonstrated potential for death or serious bodily injury to innocent people.”
R., Vol. II at 20. Moreover, this particular offense was serious and dangerous
because Mr. Smith committed it during business hours when innocent bank
employees were present and in harm’s way, and purported to brandish a handgun.
Although Mr. Smith was an intelligent and articulate individual with
superior writing skills, he presented “no special or compelling mitigating
circumstances, no outstanding service to country or community, no unusually
disadvantaged childhood, no overstated criminal history, [and] no post-offense
rehabilitation.” Id. at 21. While gambling was the explanation given for the
offense, it was not an excuse. Moreover, with his four prior felonies, Mr. Smith’s
criminal history was “relatively aggravated.” Id. at 22.
Summing up, the district court concluded that Mr. Smith’s “philosophy
evinces a disrespect for the law and the property and the rights of others,
including the tellers whom he victimized and terrorized on December 15, 2008.
Various judicial interventions have failed to reform or deter the defendant.” Id.
In order “to provide for just punishment, to promote respect for the law, to protect
the public from further crimes of this defendant, to provide adequate deterrence,
to provide the defendant an opportunity for rehabilitation and to avoid
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unwarranted sentencing disparities,” the district court (1) denied a variance,
reasoning that a sentence within the guideline range “adequately addresses and
satisfies the principles, requirements and needs of [18 U.S.C. §] 3553(a),” and
(2) imposed a prison term of 84 months. Id. The district court specifically found
that this sentence was “sufficient but not greater than necessary to achieve the
congressional goals and purposes of sentencing and to satisfy the requirements,
principles and needs of Section 3553(a) and (a)(2).” Id. at 22-23.
ANALYSIS
Mr. Smith raises a single issue on appeal: whether his within-guidelines
sentence was substantively unreasonable. We review the substantive
reasonableness of a sentence under an “abuse-of-discretion standard.” United
States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008), cert. denied, 129 S. Ct.
1391 (2009). A district court’s sentence is substantively unreasonable “only if
the court exceeded the bounds of permissible choice, given the facts and the
applicable law in the case at hand.” United States v. McComb, 519 F.3d 1049,
1053 (10th Cir. 2007) (quotation omitted). Such an abuse occurs “when it renders
a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.”
United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quotation
omitted). We have also noted that
in many cases there will be a range of possible outcomes the facts
and law at issue can fairly support; rather than pick and choose
among them ourselves, we will defer to the district court’s judgment
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so long as it falls within the realm of these rationally available
choices . . . . Nonetheless, we will not hesitate to find abuse where a
decision is either based on a clearly erroneous finding of fact or an
erroneous conclusion of law or manifests a clear error of judgment.
McComb, 519 F.3d at 1053-54 (quotations omitted).
Because Mr. Smith was sentenced within the advisory guideline range of 77
to 96 months, a rebuttable presumption arises on appeal that his sentence was
substantively reasonable. See United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006). This presumption of reasonableness can be rebutted by showing
that the sentence imposed is unreasonable in light of the factors stated in
18 U.S.C. § 3553(a). Id.
Mr. Smith argues that the district court gave too much weight to his
criminal history, “while giving insufficient weight to his personal circumstances
and the impact of those circumstances on his criminal history.” Aplt. Br. at 13.
He argues that all of his prior convictions and the present offense resulted from
his gambling addiction, that his prior crimes were non-violent, that he caused no
physical injury to anyone, and that he expressed sincere remorse and a desire to
obtain treatment for his gambling addiction and related mental illness. As the
record shows, the district court expressly considered Mr. Smith’s gambling
addiction, finding that it did not excuse his behavior. It noted the dangerous and
potentially violent nature of his latest offense, a factor demonstrating escalation
from his prior non-violent offenses. While Mr. Smith’s remorse was evidenced
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by his letter to his victim and his statement at allocution, his criminal history was
extensive and he had rejected a program of treatment offered to him. We discern
no abuse of discretion in the district court’s weighing of these factors.
Mr. Smith also argues that the district court improperly relied on the
generic seriousness of bank robbery, without acknowledging the specific
circumstances of his offense. We disagree. The district court cited both the
generically serious nature of bank robbery and the particular circumstances of
Mr. Smith’s crime. See R., Vol. II at 20-21. The district court’s citation of
particular circumstances of the offense obviates concern about over-reliance on
the crime’s generic characteristics. Cf. United States v. Osborne, 593 F.3d 1149,
1153-54 (10th Cir. 2010) (per curiam) (upholding upward departure from
guideline range where, although district court erroneously opined that high-speed
car chases are always so dangerous that they warrant automatic upward departure,
it also relied on exceptional circumstances of defendant’s particular high-speed
chase).
Finally, Mr. Smith argues that the 84-month sentence was unreasonable
because it exceeded the 77-month sentence recommended both in the PSR and by
the government. 1 Neither the PSR nor the government’s recommendation was, of
1
Mr. Smith complains that the sentencing judge failed to “explicitly [state]
why it rejected the recommendation of both the government and the probation
officer.” Aplt. Br. at 15. This is an argument about procedural rather than
substantive reasonableness. In any event, the district court adequately explained
(continued...)
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course, binding on the sentencing judge. Moreover, the sentence was in the
bottom half of the guideline-sentencing range, which is what the government had
agreed to recommend in the plea agreement, and was presumptively reasonable
because it fell within the advisory guideline range. In sum, we discern no abuse
of discretion in the sentence imposed.
The judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
1
(...continued)
its reasons for imposing a sentence of 84 months.
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