                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-2007

USA v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2436




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                                                  NOT PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                         No. 04-2436
                        ____________

              UNITED STATES OF AMERICA,

                               v.

                  CHRISTOPHER SMITH,

                                Appellant.

                         __________


        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                     (No. 02-cr-00172-26)
          District Judge: Honorable Stewart Dalzell

          Submitted Under Third Circuit LAR 34.1(a)
                      October 23, 2007

Before: SLOVITER, CHAGARES and HARDIMAN, Circuit Judges.

                        ____________

                  (Filed: November 1, 2007)

                        ____________

                 OPINION OF THE COURT
                      ____________
CHAGARES, Circuit Judge.

       Christian Smith appeals his conviction and sentence stemming from his

participation in a vast drug-dealing operation. For the reasons expressed below, we will

affirm in part, vacate in part, and remand the matter to the District Court.

                                              I.

       Appellant Christopher Smith, along with 36 co-conspirators, participated in a

massive cocaine and cocaine base (crack) conspiracy spanning Philadelphia, Western

Pennsylvania, Delaware, and other locations. From 1997 through 2002, the conspiracy,

conservatively estimated, distributed approximately 600 kilograms of cocaine and 400

kilograms of cocaine base. The conspiracy also occasioned a variety of substantive drug

possession and drug distribution crimes and numerous acts of violence, including murder.

For his role in the operation, a jury convicted Smith on three counts: conspiracy to

distribute cocaine and cocaine base (Count One), and two counts of possession of a

firearm in furtherance of a drug trafficking crime (Counts 119 and 121).

       Subsequently, the District Court made various findings of fact and ultimately

sentenced Smith to life imprisonment plus terms of five and 25 years, to run

consecutively. Smith now appeals on three grounds. He claims that the judicial fact-

finding during his sentencing violated United States v. Booker, 543 U.S. 220 (2005), that

the wrongful fact-finding subjected him to double jeopardy and cruel and unusual

punishment, and that there was insufficient evidence of the possession of firearms used in

furtherance of a drug trafficking crime. While Smith’s arguments concerning Counts 119

                                              2
and 121 are meritless, the Government concedes that the Court wrongfully applied a

mandatory Guidelines regime in sentencing Smith on Count One. Accordingly, we will

affirm the judgment of sentence as to Counts 119 and 121, but we will vacate the

judgment of sentence as to Count One, and remand for resentencing in accordance with

Booker.

                                             II.

       Smith’s appeal of Counts 119 and 121 on sentencing grounds fails as the District

Court properly determined facts relevant to sentencing. Contrary to Smith’s contention,

judicial fact-finding during sentencing is appropriate, so long as the District Court does

not apply the resulting Guidelines level in a mandatory fashion and the final sentence

does not exceed the statutory maximum. United States v. Cooper, 437 F.3d 324, 329-30

(3d Cir. 2006); United States v. Giaguinto, 441 F.3d 195, 196 (3d Cir. 2006). Here, the

District Court met those two requirements. First, the Court did not apply a sentence

under the Guidelines to the firearm possession convictions at all, mandatory or otherwise,

instead sentencing Smith according to the statutory mandatory minimum under 18 U.S.C.

§ 924(c)(1)(A). See United States v. Williams, 464 F.3d 443, 449 (3d Cir. 2006). That

statute provides for a five-year minimum sentence for possession of a firearm in

furtherance of a drug trafficking offense, and a 25-year minimum sentence for a second

such conviction. 18 U.S.C. § 924(c)(1)(A). Second, the jury verdicts as to Counts 119

and 121 authorized penalties of life imprisonment. As the Court found facts supporting

sentences of five and 25 years—below the maximum sentences authorized by the jury

                                             3
verdict—the resulting sentences were in accordance with prevailing caselaw. See

Williams, 464 F.3d at 449 (citing Harris v. United States, 536 U.S. 545 (2002) (“[A]

judge may make findings of fact that increase a defendant’s mandatory minimum

sentence as long as those findings do not extend the sentence beyond the maximum

authorized by the jury’s verdict.”)).

       Smith’s sentence as to Count One, however, fails to adhere to these requirements.

The Government concedes that the District Court sentenced Smith under the mandatory

Guidelines regime then in effect (not under any applicable mandatory minimum, as

above). We held in United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005) (en banc)

that where a district court applies the Guidelines in a mandatory fashion, prejudice is

presumed and a remand for resentencing is required. Accordingly, we will vacate the

judgment of sentence as to Count One and remand for resentencing in accordance with

Booker.

                                            III.

       Smith’s final argument on appeal—that there was insufficient evidence for the jury

to convict him of both counts of possession of a firearm in furtherance of a drug

trafficking crime—fails as well. When deciding whether a jury verdict rests on legally

sufficient evidence, the court must view the evidence in the light most favorable to the

Government and sustain the verdict if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. United States v. Dent, 149

F.3d 180, 187 (3d Cir. 1998). Given the incriminating testimony by Smith’s co-

                                             4
conspirators, the ballistics evidence, the testimony of the medical examiner, the

corroboration by eyewitnesses, and even the recovery of the firearms used during the

incident on February 26, 2000, the jury was amply justified in finding that Smith was

guilty of possessing a firearm in furtherance of a drug conspiracy on the two occasions

charged. See United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990).

                                            IV.

       For these reasons we will affirm in part, vacate in part, and remand to the District

Court for further proceedings consistent with this opinion.




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