FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 31, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3086
(D.C. No. 2:16-CR-20022-JAR-1)
JACOB L. SMITH, (D. Kan.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.
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Jacob Smith appeals following his convictions for bank robbery and
discharging a firearm during and in relation to a crime of violence. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Smith pled guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a)
and (d), and discharging a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A). Smith’s Presentence Investigation Report
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
recommended a Guidelines range of 97 to 121 months for the first count to run
consecutively with the mandatory 120 months for the second count. The government
sought an upward variance of six offense levels and an upward departure of four
additional levels. The defense sought a sentence on the lower end of the initial
Guidelines range.
The district court granted the government’s motion in part, upwardly varying
and departing to impose a sentence of 180 months on the first count and 120 on the
second. Smith now appeals.
II
Smith challenges his conviction under § 924(c)(1)(A), arguing that his bank
robbery conviction does not qualify as a crime of violence. Since the initiation of
Smith’s appeal, we have held that bank robbery does so qualify under the elements
clause of U.S.S.G. § 4B1.2(a)(1). United States v. McCranie, 889 F.3d 677, 679–81
(10th Cir. 2018). Because the elements clause of § 924 is identical to that contained
in the Guidelines, compare U.S.S.G. § 4B1.2(a)(1), with § 924(c)(3)(A), we reach the
same conclusion.
III
Smith also argues that the district court failed to adequately explain its
sentencing decision. The government contends that because Smith failed to object
below, we should review only for plain error. See United States v. Ruiz-Terrazas,
477 F.3d 1196, 1199 (10th Cir. 2007). Smith counters that the district court did not
give his counsel an opportunity to object. However, the district court did ask for
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objections after tentatively announcing its sentencing decision. We thus review this
issue for plain error. Smith “must demonstrate that there is (1) an error; (2) that is
plain; (3) that affects substantial rights; and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Mann, 786
F.3d 1244, 1249 (10th Cir. 2015) (quotation omitted).
A sentencing court must “state in open court the reasons for its imposition of
the particular sentence.” 18 U.S.C. § 3553(c). The explanation must be adequate “to
allow for meaningful appellate review and to promote the perception of fair
sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). In the course of deciding
to impose a significant upward variance and departure in this case, the district court
noted the mitigating and aggravating factors the parties had cited, including Smith’s
age, the influence his co-defendants had over him, his history of mental health
problems, and the dangerous nature of his conduct. The court then ruled that a
sentence of 180 months for the first count and 120 months for the second would be
appropriate, in light of these countervailing facts. We conclude this explanation was
not plainly inadequate.
Smith additionally contends that the district court erred by failing to announce
the adjusted Guidelines range before imposing his sentence. But this omission
cannot be reasonably interpreted to have “seriously affect[ed] the fairness, integrity,
or public reputation of judicial proceedings.” Mann, 786 F.3d at 1249. Finally, the
court’s written statement of reasons—which indicated that one of the reasons for the
variance imposed was to avoid unwarranted sentencing disparities among
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defendants—is not in conflict with the district court’s statement that it would not
vary upward by a further two levels to bring Smith’s sentence to his co-defendant’s.
IV
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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