United States v. Smith

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
February 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-30313

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMOLD SMITH,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Smith challenges his non-Guideline sentence of sixty months

imprisonment. He argues that the district court’s sentence based

on his criminal history and parole status was unreasonable under

United States v. Booker, 125 S. Ct. 738 (2005). For the reasons

set forth below, we find that the court’s sentence was reasonable.
 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 11, 2004, two officers of the New Orleans Police

Department were on patrol at the Guste Housing Development in New

Orleans, Louisiana. They observed Jamold Smith (“Smith”) running

toward them, holding what appeared to be a pistol. After realizing

that there were two police officers, Smith tossed the pistol and

tried to flee. The officers recovered the fully loaded firearm

with its handle wrapped in tape.

On October 21, 2004, Smith was indicted on one count of

illegal possession of a firearm as a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). On December 15, 2004,

Smith pleaded guilty to the indictment. The district court, on

March 16, 2005, sentenced him to sixty months imprisonment. The

court found the presentence report (“PSR”) to be “accurate and

uncontested” and adopted the Guideline range of twenty-one to

twenty-seven months of imprisonment.

Based on its finding that the applicable range did not

adequately reflect Smith’s criminal history or parole status at the

time of the crime, the district court deviated1 from the Guidelines

and sentenced Smith to sixty months imprisonment. Specifically,

the court found that the Guideline range did not adequately take

1
We use the terms “deviate” and “deviation” to describe a
non-Guideline sentence, which is not the result of a Guidelines-
authorized upward or downward departure. In United States v.
Mares, we adopted the phrase “non-Guideline sentence” to express
this distinction. 402 F.3d 519 n.7 (5th Cir. 2005).

2
into account Smith’s (1) release on parole less than one month

before the offense, (2) three narcotics convictions, and (3) three

juvenile convictions—theft at age nine, trespass at age twelve, and

possession of crack cocaine at age fourteen. Smith objected to the

sentence, claiming that it was unreasonable, and timely filed this

appeal.

II. STANDARD OF REVIEW

The district court’s application of the Guidelines, even after

Booker, is reviewed de novo. See United States v. Villegas, 404

F.3d 355, 359 (5th Cir. 2005).2 This Court accepts findings of

fact made in connection with sentencing unless clearly erroneous.

United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005); see

United States v. Milton, 147 F.3d 414, 421 (5th Cir. 1998).

Under United States v. Booker, we ultimately review a sentence

for “unreasonableness.” 125 S. Ct. at 765. Though flexible, the

reasonableness standard is not unbounded. Both a district court’s

post-Booker sentencing discretion and the reasonableness inquiry on

appeal must be guided by the sentencing considerations set forth in

18 U.S.C. § 3553(a). Booker, 125 S. Ct. at 766. Those factors

2
Although the district court ultimately decided to impose a
non-Guideline sentence in this case, it was still required to
determine the Guideline range. See p. 5, infra. Villegas’s
holding that we review Guideline interpretations de novo must
apply here. Without a properly-calculated Guideline range, we
cannot ensure that the disparity between Smith’s sentence and the
Guideline range is warranted.

3
include:

(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed . . . medical
care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . . ;
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct . . . .

18 U.S.C. § 3553(a) (2000).

Our post-Booker case law has recognized three different types

of sentences under the advisory Guidelines regime. First, a

sentencing court may exercise its discretion to impose a sentence

within a properly calculated Guidelines range. In such a

situation, we will “infer that the judge has considered all the

factors for a fair sentence . . . , and it will be rare for a

reviewing court to say such a sentence is ‘unreasonable.’” United

States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In United

States v. Alonzo, this Court further clarified the deferential

standard for reviewing sentences within a properly calculated

Guideline range. 2006 U.S. App. LEXIS 447, at *7-9, __ F.3d __

4
(5th Cir. Jan. 9, 2005). Alonzo held that such a sentence is

afforded a rebuttable presumption of reasonableness. Id. at *8.

Second, a sentencing court may impose a sentence that includes

an upward or downward departure as allowed by the Guidelines.

Because the court’s authority to depart derives from the Guidelines

themselves, a sentence supported by a departure is also a

“Guideline sentence.” Mares, 402 F.3d at 519 n.7. In evaluating

both a decision to depart and the extent of the departure, we

review for “abuse of discretion.” United States v. Saldana, 427

F.3d 298, 308. In assessing the extent of a departure, we continue

to look to our pre-Booker case law for guidance. See id. at 312;

United States v. Simkanin, 420 F.3d 397, 419 (5th Cir. 2005);

United States v. Smith, 417 F.3d 483, 492–93 (5th Cir. 2005).

The district court in the instant case elected a third option.

After Booker, a court may impose a non-Guideline sentence—a

sentence either higher or lower than the relevant Guideline

sentence. Before imposing a non-Guideline sentence, however, the

court must consider the Sentencing Guidelines. In light of this

duty, “a district court is still required to calculate the

guideline range and consider it advisory.” United States v.

Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir. 2005) (emphasis in

original). Consequently, if it decides to impose a non-Guideline

sentence, the court should utilize the appropriate Guideline range

as a “frame of reference.” See United States v. Fagans, 406 F.3d

5
138, 141 (2d Cir. 2005); United States v. Jackson, 408 F.3d 301,

305 (6th Cir. 2005).

Additionally, the district court must more thoroughly

articulate its reasons when it imposes a non-Guideline sentence

than when it imposes a sentence under authority of the Sentencing

Guidelines. Mares, 402 F.3d at 519. These reasons should be fact-

specific and consistent with the sentencing factors enumerated in

section 3553(a). Id. The farther a sentence varies from the

applicable Guideline sentence, “the more compelling the

justification based on factors in section 3553(a)” must be. United

States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); see Jackson, 408

F.3d at 305. The court, however, need not engage in “robotic

incantations that each statutory factor has been considered.”

United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005)

(internal quotation marks omitted); see United States v. Simpson,

__ F.3d __, 2005 WL 3370060, *7 (D.C. Cir. Dec. 13, 2005) (finding

no requirement for the district court to “specifically refer to

each [section 3553(a)] factor”) (emphasis in original). Congress

never intended sentencing “to become a hyper-technical exercise

devoid of common sense.” United States v. Gonzales, 250 F.3d 923,

930 (5th Cir. 2001). Thus, a checklist recitation of the section

3553(a) factors is neither necessary nor sufficient for a sentence

to be reasonable. See Dean, 414 F.3d at 729.

The purpose of the district court’s statement of reasons is to

6
enable the reviewing court to determine whether, as a matter of

substance, the sentencing factors in section 3553(a) support the

sentence. United States v. Long Soldier, __ F.3d __, 2005 WL

3501337, *2 (8th Cir. Dec. 23, 2005); see Unites States v. McBride,

No. 04-4347, slip op. at 3, __ F.3d __ (6th Cir. Jan. 17, 2006)

(holding that “a sentence should reflect the considerations listed

in § 3553(a)”). We agree with the framework articulated by the

Eighth Circuit in assessing the reasonableness of a court’s

statutory support. See United States v. Haack, 403 F.3d 997, 1004

(8th Cir. 2005). A non-Guideline sentence unreasonably fails to

reflect the statutory sentencing factors where it (1) does not

account for a factor that should have received significant weight,

(2) gives significant weight to an irrelevant or improper factor,

or (3) represents a clear error of judgment in balancing the

sentencing factors. See id.; Long Soldier, __ F.3d at __, 2005 WL

3501337, *3 (applying the “Haack test for reasonableness” to a non-

Guidelines sentence).

III. DISCUSSION

The court properly calculated the Guideline range sentence,

and Smith does not object to that calculation. In addition, the

court used the Guideline range as a frame of reference and

carefully explained why it would impose a non-Guideline sentence:

I’ve looked at your background. You have a 7th grade
education, you’re a convicted felon . . . . [T]he grip

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 of the gun was wrapped with tape. . . . You have three
narcotics convictions . . . , you’re on parole but you’re
on for less than a month when this occurred. You have
three juvenile convictions which were not counted with
respect to your criminal history. Accordingly, pursuant
to the Sentencing Reform Act of 1984, I take into
consideration not only the guidelines but the need to
afford adequate deterrence for criminal conduct and need
to protect the public from further crimes of you, it’s
the judgment of this court that you . . . be imprisoned
for a term of 60 months . . . . Again, I state for the
record that I go above the 27 months [Guideline range for
the previously articulated reasons].

Accordingly, the court properly followed the procedure for imposing

a non-Guideline sentence.3 We turn now to whether the substance of

the sentence reflects the section 3553(a) factors.

Smith makes three claims which fall under the second part of

the Haack reasonableness test.4 He contends that the decision to

deviate from the Guideline range and the degree of variance5 from
3
We treat the sentence at issue here as a non-Guideline
sentence. The court did not make reference to upwardly departing
or utilizing an enhancement, nor did it refer to enhancement
provisions of the Guidelines. Therefore, we do not examine
whether an upward departure or an enhancement was available under
the Guidelines.
4
The court noted during sentencing that the butt of a
revolver generally is taped to prevent law enforcement from
discovering fingerprints. Smith does not challenge this finding,
nor does he claim that the selected sentence gives weight to an
improper factor.
5
“While the mere fact that a . . . sentence exceeds by
several times the guideline maximum is of no independent
consequence in determining whether the sentence is reasonable, it
may indicate the unreasonableness of the departure [or deviation]
viewed against the court’s justification for that departure [or
deviation].” United States v. Campbell, 878 F.2d 164, 166 (5th
Cir. 1989) (internal citation omitted); see also Simkanin, 420
F.3d at 397 (“[T]he mere fact that the upward departure nearly
doubled the Guidelines range does not render it unreasonable”);
Saldana, 427 F.3d at 298, 312 (noting that although the “district

8
that range is unreasonable because the selected sentence gave

significant weight to improper factors.6 First, Smith argues that

the court’s reliance on his criminal history was improper.

Specifically, he claims the court’s statement that he had three

narcotics-related convictions was misleading because Smith is a

drug user, not a dealer. In addition, Smith contends that the

court could not rely on these convictions to deviate from the

Guideline range as they already were accounted for in his Guideline

criminal history. Second, Smith argues that the court improperly

cited his recent release on parole as a reason for deviation

because the Guideline range adopted by the court accounted for his

parole status. Third, relying on Roper v. Simmons, 125 S. Ct. 1183

(2005), Smith claims his “relatively mild transgressions between

the age of 9 and 14” should not have been relied upon by the court.

The sentence as imposed does not take into account an improper

or irrelevant factor. The court evaluated the “nature and

circumstances of the offense and the history and characteristics of

the defendant” and concluded that it would deviate “to afford

adequate deterrence to criminal conduct” and “to protect the public

from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1),

court quadrupled the maximum sentence allowable for [the
defendant] under the Guidelines,” the sentence was reasonable);
Smith, 417 F.3d at 495–93 (finding that a sentence almost three
times the top of the Guideline range was not unreasonable).
6
The district court stated that Smith had a “7th grade
education” when discussing Smith’s background. Smith does not
argue that this represented reliance on an impermissible factor.
Any argument on that basis is therefore waived.

9
(2)(B), (C). A defendant’s criminal history is one of the factors

that a court may consider in imposing a non-Guideline sentence.

Mares, 402 F.3d at 519. Moreover, the sentence reflects juvenile

adjudications not accounted for by the Guideline sentence. The

court also considered Smith’s release on parole less than one month

before the commission of the instant crime. Although the PSR

criminal history calculation recognized his status as a parolee at

the time of the offense, the court relied on Smith not only having

the status of a parolee but also having been released from prison

“less than a month” beforehand—a temporal distinction of some

significance to the court—which relates to the history and

characteristics of Smith. 18 U.S.C. § 3553(a)(1). Furthermore, as

the Government submitted, Roper is inapposite. While Roper may

have found that youth reduces criminal culpability, 125 S. Ct. at

1195, it was a capital punishment case involving the Eighth and

Fourteenth Amendments, not a Booker sentencing case. In sum, the

sentence does not take into account an improper factor.

Additionally, Smith argues that the sentence as imposed fails

to reflect a statutory sentencing factor that should have received

significant weight—the first part of the Haack test. He states

that the court’s selection of a sentence seven increments above the

Guideline range conflicts with the “need to avoid unwarranted

sentence disparity,” 18 U.S.C. § 3553(a)(6), and therefore is

unreasonable. Smith, however, fails to provide the court with

10
evidence, such as average sentences for similarly-situated

defendants or a case in which a similarly-situated defendant

received a lesser sentence, to enable this Court to determine

whether his sentence violated the Sentencing Reform Act provision.

Cf. Saldana, 427 F.3d at 313 (finding that despite the defendant’s

recitation of “numerous cases in which [similarly situated]

individuals . . . received shorter sentences,” the sentence was

reasonable). Furthermore, in this case, the disparity between

Smith’s sentence and other defendants with his Guideline range was

not unwarranted. The district court relied on significant factors

not accounted for by Smith’s Guideline range. Therefore, the

imposed sentence does not produce an unwarranted disparity.7

The district court properly calculated the applicable

7
The concurring opinion faults the district court for not
explicitly addressing the need to avoid unwarranted sentencing
disparity. We hold that the court gave fact-specific
justifications for its sentence sufficient to permit us to review
for reasonableness. Thus, the level of articulation required
under Mares is satisfied. 402 F.3d at 519. Furthermore, the
sentence in this case, at twice the Guideline range, is
reasonably supported by the statutory sentencing factors such
that we will not disturb the district court’s sentencing
decision.
Additionally, Smith did not waive any argument based on
sentencing disparity. The cases cited by the concurrence in
support of waiver are inapposite. See, e.g., Salazar-Regino v.
Trominski, 415 F.3d 436, 452 (5th Cir. 2005) (holding argument
was waived because the petitioners cited only one case, failed
“to explain how the cited opinion should apply to the instant
case,” and also failed “to mention that the opinion is not even
good law”). Here, Smith cites to valid statutory authority and
explains how the statute supports his argument. Smith’s
contention, though ultimately rejected herein, satisfies the
requirements of Federal Rule of Appellate Procedure 28(a)(9)(A)
and therefore was not waived.

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Guideline range and carefully articulated permissible reasons for

its variance. Therefore, the court committed no legal error in the

sentencing procedure. Accordingly, the sentence must be given

great deference. Additionally, the court’s findings in support of

the upward variance sufficiently demonstrate that the substance of

the sentence is reasonable under § 3553(a).

IV. CONCLUSION

Following the post-Booker reasonableness standard, the

district court did not err in sentencing Smith to sixty months

imprisonment. The court’s reliance on Smith’s criminal history

and recent status as a parolee was not erroneous. Accordingly,

the district court’s judgment is AFFIRMED.

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EMILIO M. GARZA, Circuit Judge, concurring in part and in the judgment:

I agree with the majority’s adoption of the Eighth Circuit’s United States v. Haack, 403

F.3d 997 (8th Cir. 2005), standard for reviewing non-Guidelines sentences. I disagree, however,

with the majority’s conclusion that the district court adequately considered 18 U.S.C. §

3553(a)(6), “the need to avoid unwarranted sentencing disparity.” The Haack standard requires

us to vacate a sentence and remand when the district court did not consider a factor that should

have received significant weight. Id. at 1004. I would hold that where the district court imposes

a sentence that is more than twice the top of the applicable Guidelines range, sentencing disparity

is a factor that should receive significant weight. Although the district court need not, in most

cases, explicitly discuss each of the § 3553(a) factors, a sentence so far outside the Guidelines

range is not reasonable without consideration of the resulting disparity.

I concur in the judgment, however, because Smith has waived any argument based on

sentencing disparity by failing to adequately brief it. FED.R.APP.P. 28(a)(9)(A); Salazar-Regino v.

Trominski, 415 F.3d 436, 452 (5th Cir. 2005) (argument that consisted solely of a single citation

to a case is waived); L & A Contracting Co. v. S. Concrete Servs., 17 F.3d 106, 113 (5th Cir.

1994) (holding that argument that was one-page in length was waived where appellant cited no

authority). The total of Smith’s argument on point consists of the conclusory assertion that his

sentence conflicts with the need to avoid unwarranted sentencing disparity. The remainder of

Smith’s brief argues that a non-Guidelines sentence is unreasonable when the Guidelines already

take into consideration the reasons given by the district court. Accordingly, I would hold that

Smith has waived the argument and affirm the sentence on that basis.

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