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


6-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5414




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 05-5414

                           UNITED STATES OF AMERICA

                                            v.

                                    LARRY SMITH,

                                                  Appellant

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 03-cr-00356)
                       District Court: Hon. Eduardo C. Robreno


                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                   April 23, 2007

                      BEFORE: McKEE, AMBRO, Circuit Judges,
                       and ACKERMAN, Senior District Judge.*

                              (Opinion filed: June 5, 2007)


McKEE, Circuit Judge.

       Larry Smith appeals the sentence that was imposed after he was convicted of

Hobbs Act robbery, carjacking, brandishing a firearm during and in relation to a crime of

violence, and being a felon in possession of a firearm. Counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), in which he represents that there are no

       *
         The Honorable Harold A. Ackerman, Senior United States District Judge for the
District of New Jersey, sitting by designation.
nonfrivolous issues for appeal. We have reviewed the record for possible appellate issues

as well as Smith’s informal pro se brief. We agree that there are no meritorious issues.

Accordingly, we will affirm.

                                               I.

       As we write primarily for the parties who are familiar with the factual and

procedural background of this case, we need not reiterate them here. The sole issue

before us is based upon Smith’s challenge to the sentence he received.1 We address the

only two portions of the record that arguably support a claim of error.

       First, during the resentencing hearing the district court stated: “some people say

that [the Guidelines] should be presumptive, . . . I agree with that.”2 App. at 29.

However, the court also stated several times during resentencing that it understood that

the Guidelines were only advisory. See App. at 24, 25, 28. The court also elicited

testimony from Smith to “help my understanding of the factors outlined in the [applicable

sentencing statute] in reaching the final calculation . . . .” Id. at 29. After listening to

Smith’s arguments for a lower sentence, the court recognized the importance of two



       1
        We considered the other issues raised by Smith in his pro se brief, alleging jury
and prosecutorial misconduct, and rejected them on July 20, 2005. We also rejected
Smith’s allegation that the district court erred in applying a sentencing enhancement. We
nevertheless remanded for resentencing under Booker. The district court’s sentence on
remand is the subject of this appeal.
       2
        Although some appellate courts view the Guidelines as presumptively
reasonable, this Circuit does not. United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir.
2006).

                                               2
principles in determining an appropriate sentence: that punishment should be no greater

than necessary to achieve the objectives of the sentencing scheme, and the mandatory

minimum sentences required by Congress. The court then concluded that the sentence of

472 months imprisonment that it had previously imposed was greater than necessary to

achieve the objectives of the Guidelines, and the court imposed the mandatory minimum

sentence of 384 months for the firearms offenses, plus 24 months imprisonment for

Hobbs Act robbery and carjacking.

       We believe that the court’s sentence was reasonable. The court considered the

factors set forth in 18 U.S.C. § 3553, including the characteristics of the

defendant—specifically his age upon release, the deterrent effect of the sentence imposed,

and the seriousness of Smith’s crimes. Accordingly, we reject Smith’s claim that the

court imposed a sentence pursuant to mandatory Guidelines.

       Smith also claims the court erred because its Guideline calculation was incorrect.

The record is clear. The court’s initial calculation was wrong. However, the court

corrected the calculation as soon as it became aware of the error and then imposed a

corrected sentence stating the correct Guidelines range. App. at 39-40. Accordingly, we

reject Smith’s challenge to the sentence that was imposed on remand, and conclude that

there are no meritorious grounds for appeal.

                                             II.

       For the foregoing reasons, we will affirm the judgment of sentence and grant

counsel leave to withdraw.

                                               3
