UNITED STATES v. SMITH (2021)

United States Court of Appeals, Fifth Circuit.2021-05-03No. No. 20-10822

Summary · law.co

Holding. The appellate court affirmed Smith's sentence and the application of both sentencing enhancements.

Melinda Smith appealed her sentence for conspiracy to possess methamphetamine with intent to distribute, raising three challenges to sentencing enhancements. Smith first argued that a two-level enhancement based on her co-conspirator's possession of a firearm was improper because the government had not demonstrated the gun was used to further their joint criminal activity, particularly since the co-conspirator discarded it during a police chase about a week after Smith's arrest. The court rejected this argument, finding that Smith had provided the pistol to her co-conspirator, who served as her distribution partner and carried it regularly, and that Smith never took affirmative steps to withdraw from the conspiracy, making the enhancement appropriate.

Smith also contended on appeal that the district court committed a procedural error by failing to provide written factual findings when it rejected her objection to the firearm enhancement, as required by criminal procedure rules. The court found no clear error, noting that the presentence report and its addendum adequately supported the enhancement decision. Finally, Smith challenged a second two-level enhancement related to a finding that the methamphetamine was imported, claiming insufficient evidence that the drug was imported and that she knew of its origin. The court upheld this enhancement based on information in the presentence report, its addendum, and statements from Smith's co-conspirator.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a two-level enhancement for co-conspirator firearm possession was proper absent proof the weapon furthered the conspiracy
Whether the district court erred by failing to state factual findings when overruling an enhancement objection
Whether a two-level enhancement for drug importation was supported by sufficient evidence that the methamphetamine was imported and that Smith had knowledge of its origin

Procedural posture

Smith appealed her sentence following conviction of methamphetamine conspiracy, challenging three sentencing enhancements on direct appeal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Raising three issues, Melinda Smith appeals the sentence imposed following her conviction of conspiring to possess methamphetamine with intent to distribute. Smith first avers that the district court erroneously assessed a two-level enhancement under U.S.S.G. § 2D1.1(b)(1), because the government failed to prove that her co-conspirators possession of a pistol was in furtherance of any jointly undertaken criminal activity, given that her co-conspirator discarded the pistol during a police chase one week after her arrest. In light of findings in the record showing that Smith gave the pistol to her co-conspirator, who acted at times as her distribution partner, and that Smith knew that the co-conspirator carried the pistol regularly, and given the absence of any affirmative acts showing Smiths withdrawal from the conspiracy, there was no error, plain or otherwise, in the application of the enhancement. See United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000); United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).

Smith contends, for the first time on appeal, that the district court plainly erred by failing to provide factual findings, per Federal Rule of Criminal Procedure 32(i)(3)(B), when it overruled her objection to the § 2D1.1(b)(1) enhancement. Application of the enhancement is supported by the presentence report (“PSR”) and the PSR Addendum, and we have no reason to second-guess the sentencing decision. See United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994). Accordingly, the district court did not clearly or obviously err. See id.; see also Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

Smith posits that the district court erroneously assessed a two-level enhancement under § 2D1.1(b)(5), based on a finding that the methamphetamine was imported. She contends that there was insufficient evidence proving that the methamphetamine was imported and that the government failed to prove that she knew it was imported. Given the findings in the PSR and PSR Addendum, as well as the statement of Smiths co-conspirator, there was no error, plain or otherwise. See United States v. Rico, 864 F.3d 381, 386 (5th Cir. 2017); United States v. Serfass, 684 F.3d 548, 552 (5th Cir. 2012).

The judgment is AFFIRMED.

FOOTNOTES

FOOTNOTE

Per Curiam:*

FN* Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.