United States v. Smitherman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
May 2, 2008
No. 07-10824
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

TERESA SMITHERMAN

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-3-6

Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Teresa Smitherman appeals the 97-month sentence imposed by the district
court following her guilty plea conviction for possession of methamphetamine
with intent to distribute and aiding and abetting. She argues that the sentence
is unreasonable and that the district court did not give reasons for denying her
motion for a sentence below the applicable guideline range. She argues that a
sentence below the guideline range was appropriate in this case because she
distributed methamphetamine only to support her own habit; she was involved

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
 No. 07-10824

with the codefendants for only approximately three months; she did not
personally know the drug supplier; she had only two prior misdemeanor
convictions; she cooperated fully with state and federal authorities; and while
incarcerated, she voluntarily enrolled in a drug treatment program.
The Government argues that review is limited to plain error because
Smitherman did not object to the reasonableness of her sentence at the close of
the sentencing hearing. The court need not decide the appropriate level of
review because, as explained below, the district court’s reasons for imposing a
sentence with the advisory guidelines range were sufficient even if the claim was
preserved.
Because Smitherman’s sentence was within the applicable guideline
range, it is entitled to a presumption of reasonableness and lengthy explanation
of the sentence was not required. See Gall v. United States, 128 S. Ct. 586, 597
(2007); see also Rita v. United States, 127 S. Ct. 2456, 2468 (2007). Smitherman
does not argue that the district court improperly calculated the applicable
guideline range. The district court stated that it considered the information and
arguments presented by Smitherman, the factors in 18 U.S.C. § 3553(a), as well
as the need for serious penalties due to the effect of methamphetamine upon
people’s lives. Smitherman has not shown that the district court failed to
consider her arguments, that the district court erred in calculating the guideline
range, or that the sentence imposed by the district court was unreasonable. See
Gall, 128 S. Ct. at 597. Accordingly, the judgement of the district court is
AFFIRMED.

2