UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4465
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY CHARLES SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. Thomas D.
Schroeder, District Judge. (1:09-cr-00371-TDS-1; 1:10-cr-00302-
TDS-1)
Submitted: January 31, 2012 Decided: February 9, 2012
Before GREGORY, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Charles Smith appeals his conviction for access
device fraud and one of his convictions for aggravated identity
theft, and the 222-month sentence imposed by the district court
following guilty pleas to three counts of bank fraud in
violation of 18 U.S.C. § 1344(1) (2006), six counts of
aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1) (2006), money laundering in violation of 18 U.S.C.
§ 1956(a)(1) (2006), access device fraud in violation of 18
U.S.C. § 1029(a)(2) (2006), and social security fraud in
violation of 42 U.S.C. § 408(a)(6) (2006). On appeal, Smith
contends that the district court erred by not committing him to
a suitable facility for mental health treatment in lieu of
sentencing him to imprisonment, pursuant to 18 U.S.C. § 4244(d)
(2006). Smith also asserts several challenges to his sentence
and two of his convictions. We affirm.
Under 18 U.S.C. § 4244(d), a defendant with a mental
disease or defect may receive a provisional sentence and be
committed for treatment prior to his final sentencing and
incarceration. Commitment under § 4244(d) occurs if, after a
hearing on the defendant’s current mental condition, “the court
finds by a preponderance of the evidence that the defendant is
presently suffering from a mental disease or defect and that he
should, in lieu of being sentenced to imprisonment, be committed
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to a suitable facility for care or treatment.” 18 U.S.C.
§ 4244(d). In making this determination, the district court is
required to find both a mental disorder “and that the defendant
should be hospitalized in lieu of imprisonment.” United
States v. Buker, 902 F.2d 769, 770 (9th Cir. 1990). A district
court’s determination as to a defendant’s mental condition is a
finding of fact that we review for clear error. United
States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990). We review
for abuse of discretion a district court’s finding that a
defendant should not be committed to a mental health facility in
lieu of imprisonment. See United States v. General, 278 F.3d
389, 397 (4th Cir. 2002) (reviewing for abuse of discretion a
district court’s determination concerning a defendant’s
competency to be sentenced under 18 U.S.C. § 4244).
Having reviewed the record, we conclude that the
district court did not abuse its discretion in ruling that,
assuming Smith suffered from a mental disease or defect,
important governmental interests would not be served by his
commitment under the statute. See United States v. Jensen, 639
F.3d 802, 805-06 (8th Cir. 2011). Therefore, this claim
entitles Smith to no relief.
Next, Smith asserts several challenges to his
sentence. We review a sentence for reasonableness, using an
abuse of discretion standard of review. Gall v. United States,
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552 U.S. 38, 46, 51 (2007). The first step in this review
requires us to ensure that the district court committed no
significant procedural error. United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008). Procedural errors include improperly
calculating the Guidelines range or failing to consider the
§ 3553(a) factors. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). In determining whether a district court has
properly applied a particular Guidelines provision, we review
its factual findings for clear error and its legal conclusions
de novo. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.
2008).
Smith first challenges the district court’s imposition
of a two-level increase in his offense level under U.S.
Sentencing Guidelines Manual (“USSG”) § 2S1.1(b)(3) (2010),
based on its finding that he was engaged in sophisticated money
laundering. Under USSG § 2S1.1(b)(3), a two-level enhancement
in the defendant’s offense level is warranted if the defendant
is convicted of violating 18 U.S.C. § 1956 and the offense
involved sophisticated money laundering. The commentary to USSG
§ 2S1.1 defines sophisticated laundering as “complex or
intricate offense conduct pertaining to the execution or
concealment of the 18 U.S.C. § 1956 offense,” that “typically
involves the use of” fictitious entities, shell corporations, or
layering of transactions. USSG § 2S1.1, cmt. n.5(A). After
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reviewing the record, we conclude that the district court did
not err in finding that Smith was engaged in sophisticated money
laundering, warranting the two-level increase.
Smith next contends that the district court erred in
imposing the two-level vulnerable victim enhancement under USSG
§ 3A1.1(b)(1), because there was no evidence to show that he
actually knew that his victims, incarcerated inmates, were
unusually vulnerable. The increase is warranted “[i]f the
defendant knew or should have known that the victim of the
offense was a vulnerable victim.” USSG § 3A1.1(b)(1). In
making this determination, the district court must find that a
victim was unusually vulnerable, and assess whether the
defendant knew or should have known of such vulnerability.
United States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010).
After reviewing the record, we conclude that the district court
did not err in imposing this enhancement.
Next, Smith challenges the district court’s imposition
of six consecutive twenty-four-month sentences for his multiple
§ 1028A convictions. Smith argues that his underlying fraud
offenses were grouped under USSG § 3D1.2, and the district court
procedurally erred by failing to explain its reasons for
imposing six consecutive sentences for his multiple § 1028A
convictions when the Guidelines recommended that these sentence
run concurrently.
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Under 18 U.S.C. § 1028A, if a defendant wrongfully
uses the identity of another person during and in relation to a
bank or social security fraud, a sentencing court is required to
impose a twenty-four-month sentence consecutive to the sentence
imposed for the underlying fraud. See 18 U.S.C. § 1028A(a)(1),
(b)(2). In cases where a defendant has been convicted of
multiple counts under 18 U.S.C. § 1028A(a)(1), a court, in its
discretion, can run each of the twenty-four-month sentences
concurrently with one another, in whole or in part. 18 U.S.C.
§ 1028A(b)(4). In exercising its discretion to impose
consecutive or concurrent sentences for multiple convictions
under § 1028A, the court must consider a non-exhaustive list of
factors that includes the nature and gravity of the underlying
offenses, whether those offenses are groupable under USSG
§ 3D1.2, and whether the purposes of sentencing set forth in 18
U.S.C. § 3553(a)(2) are better achieved with consecutive or
concurrent sentences. See USSG § 5G1.2 cmt. n.2(B). The
sentencing court must adequately explain its decision to impose
consecutive sentences pursuant to § 1028A. See United States v.
Dvorak, 617 F.3d 1017, 1029 (8th Cir. 2010).
After reviewing the record, we find that the district
court properly noted that Smith’s underlying fraud offenses were
grouped under USSG § 3D1.2, but in a proper exercise of its
discretion, found that the purposes of sentencing set forth in
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18 U.S.C. § 3553(a)(2) were better achieved by imposing
consecutive sentences. We conclude that the district court
thoroughly considered those factors in making its determination,
and the resulting sentence is not substantively unreasonable.
Smith claims that the district court plainly erred in
failing to dismiss, on its own motion, one of the counts of
access device fraud and one count of aggravated identity theft
to which he pled guilty because the evidence offered at
sentencing showed that the Government could not prove the
elements of the crimes. We note that, in making this argument,
Smith does not challenge the voluntariness of his guilty plea.
“When a defendant pleads guilty, he waives all non-
jurisdictional defects in the proceedings conducted prior to
entry of the plea.” United States v. Moussaoui, 591 F.3d 263,
279 (4th Cir. 2010) (internal quotation marks omitted). We find
that because Smith’s guilty plea to the crimes was both
counseled and voluntary, he cannot now challenge his conviction
based on his contention that the evidence at sentencing failed
to prove the elements of those crimes. Thus, we conclude that
Smith is not entitled to relief.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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