In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-20658
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KEVIN ROSHARD SMITH,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:01-CR-737-ALL
_________________________
December 18, 2002
Before JONES, SMITH, and SILER,* JERRY E. SMITH, Circuit Judge:**
Circuit Judges.
Kevin Smith appeals his conviction of, and
**
Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
*
Judge of the United States Court of Appeals lished and is not precedent except under the limited
for the Sixth Circuit, sitting by designation. circumstances set forth in 5TH CIR. R. 47.5.4.
sentencing for, violating 18 U.S.C. § 922(g)(1) that the latter was a crime of violence.1 The
(2001), which prohibits convicted felons from PSR recommended no reduction for
possessing firearms in and affecting interstate acceptance of responsibility under U.S.S.G. §
commerce. We affirm the conviction but 3E1.1. It found that Smith had not withdrawn
vacate the sentence and remand for voluntarily from criminal conduct, because,
resentencing. while he was on pretrial supervision, three of
his urine specimens tested positive for illegal
I. drugs, and he did not parti cipate in drug
A. counseling as ordered.
Off-duty police officers who were working
second jobs as security in a grocery store park- Smith filed written objections to the PSR.
ing lot discovered Smith and three other men He objected to the denial of credit for
drinking alcoholic beverages in a car parked in acceptance of responsibility. He argued that
the lot; the police also smelled marihuana com- his discharge from the federal drug counseling
ing from the car. As the men were exiting, at program was because the program was twice
the officers’ request, the officers saw Smith, rescheduled and because, after a magistrate
who occupied the front passenger seat, make judge had revoked his bond, he was
two overt moves toward the floorboard. They incarcerated before he could attend the
saw a Taurus .38 caliber revolver in plain view rescheduled meeting. He asserted that his
where Smith was seated. The weapon had admission of guilt saved the government from
been manufactured in Brazil and had been trial preparation.
imported into the United States through Flori-
da. At sentencing, Smith further argued that he
was remorseful for his conduct, that his
B. positive drug tests resulted from his drug
Smith was charged wit h being a felon in addiction and inability to handle his drug
possession of a firearm in and affecting problem, and that refusing to find acceptance
interstate commerce under 18 U.S.C. §§ of responsibility based on his continued drug
922(g)(1) and 924(a)(2). Smith pleaded guilty use amounted to punishment for his status as
without benefit of a plea agreement. At re- a drug addict. He also urged that UUMV
arraignment, the government stated the factual should not be considered a crime of violence
basis for the plea, and Smith posed no under the sentencing guidelines.
objections.
The district court overruled the objections.
The presentence investigation report It granted Smith a downward departure of
(“PSR”) calculated Smith’s total offense level four offense levels to 20 and sentenced him, at
under the sentencing guidelines. Smith had the bottom of the guideline range, to 70
two prior felony convictions, one for months of imprisonment. It further ordered
unauthorized use of a motor vehicle
(“UUMV”) and one for delivery of a
controlled substance. The PSR determined 1
“[I]f the defendant had at least two prior
felony convictions of either a crime of violence or
a controlled substance offense,” U.S.S.G. § 2K2.1-
(a)(2), the appropriate base offense level is 24.
2
Smith to pay a $100 special cost assessment, that he is entitled to the reduction” for
to serve three years’ supervised release, to acceptance of responsibility under the
submit to drug detection and treatment as guidelines. Id. We will not disturb the ruling
directed by the probation officer, and to incur “‘unless it is without foundation.’” United
the costs associated with the detection and States v. Maldonado, 42 F.3d 906, 913 (5th
treatment based on ability to pay, as Cir. 1995) (quoting United States v. Roberson,
determined by the probation officer. 872 F.2d 597, 610 (5th Cir. 1989)).
II. The guidelines direct the sentencing court
Smith challenges the factual basis for his to reduce the offense level “[i]f the defendant
plea, contending that the facts to which he clearly demonstrates acceptance of
pleaded failed to establish sufficiently the in- responsibility for his offense[.]” U.S.S.G.
terstate commerce element of the § 922(g)(1) § 3E1.1(a). “The entry of a guilty plea does
offense. We review a sufficiency challenge to not entitle a defendant to a reduction as a
a guilty-plea conviction for plain error where matter of right.” Flucas, 99 F.3d at 180. The
the issue is raised for the first time on appeal. district court properly weighs whether the
See United States v. Marek, 238 F.3d 310, 315 defendant has voluntarily terminated or
(5th Cir.) (en banc), cert. denied, 534 U.S. withdrawn from criminal conduct or
813 (2001). “[N]otwithstanding an associations. United States v. Rickett, 89 F.3d
unconditional plea of guilty, we will reverse on 224, 227 (5th Cir. 1996).
direct appeal where the factual basis for the
plea as shown of record fails to establish an We consistently have upheld a sentencing
element of the offense of conviction.” United court’s refusal to credit a defendant with an
States v. White, 258 F.3d 374, 380 (5th Cir. acceptance-of-responsibility adjustment based
2001). a positive test for drug use, either while on
pretrial release or pending sentence. Flucas,
The constitutionality of § 922(g), in 99 F.3d at 180; Rickett, 89 F.3d at 227; United
circumstances such as these, was most recently States v. Watkins, 911 F.2d 983, 984-85 (5th
considered and affirmed in United States v. Cir. 1990). In Flucas, we specifically rejected
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), the argument that the district court had ruled
cert. denied, 534 U.S. 1150 (2002). Smith’s improperly because the defendant’s drug use
claim is foreclosed by circuit precedent. “did not show a lack of contrition but, instead,
was a result of his drug addiction.” 99 F.3d
III. at 180.
Smith argues that the district court erred by
denying him a three-level decrease for While under pretrial supervision, Smith sub-
acceptance of responsibility on the basis of his mitted three urine specimens, and each tested
drug use while on pretrial release. We review positively for drugs. Across the three tests,
the sentencing court’s determination “with Smith tested positively for cocaine, marihuana,
even more deference than the pure ‘clearly codeine, morphine, opiates, and PCP. We find
erroneous’ standard.” United States v. Flucas, no error in the refusal to grant a downward
99 F.3d 177, 180 (5th Cir. 1996). “The adjustment for acceptance of responsibility.
defendant bears the burden of demonstrating
3
IV. pt. A. We must reverse and remand for
Smith contends that the district court im- resentencing where changes in sentencing law
permissibly delegated its authority when it or- between sentencing and appeal benefit the
dered him to incur costs associated with his defendant. United States v. Miranda, 248
drug and alcohol protection and treatment F.3d 434, 445 (5th Cir.), cert. denied, 534
based on ability to pay, as determined by the U.S. 980 (2001).
probation officer. Because Smith did not ob-
ject to his sentence as pronounced in the dis- The judgment of conviction is AFFIRMED,
trict court, we review only for plain error. and the judgment of sentence is VACATED
United States v. de la Pena-Juarez, 214 F.3d and REMANDED for proceedings consistent
594, 600 (5th Cir. 2000). with this opinion.
The imposition of special conditions
relating to a determination of a defendant’s
ability to pay the costs of drug treatment and
other programs does not constitute an
unlawful delegation of authority to the
probation officer. United States v. Warden,
291 F.3d 363, 366 (5th Cir.), cert. denied, 123
S. Ct. 35 (2002). The conditions of
supervised release reviewed in Warden are
analogous to those required by the district
court here. We find no error.
V.
Smith challenges the district court’s
conclusion that his conviction of UUMV is a
crime of violence for purposes of sentencing.
We review the district court’s interpretation
and application of the guidelines de novo.
United States v. Charles, 301 F.3d 309, 313
(5th Cir. 2002) (en banc).
UUMV is not a crime of violence within the
meaning of the guidelines. Id. at 314
(overruling United States v. Jackson, 220 F.3d
635 (5th Cir. 2000)). Smith’s base offense
level therefore should have been 20, not 24.
U.S.S.G. § 2K2.1(4)(A). Were Smith to re-
ceive the four-level U.S.S.G. § 5K2.0
downward departure on resentencing, the
appropriate guideline imprisonment range
would be 46 to 57 months. U.S.S.G. Ch. 5,
4