                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 08-4481


                            UNITED STATES OF AMERICA

                                             v.

                                   STANFORD SMITH,

                                                            Appellant.


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D. C. No. 4-08-cr-00198-001)
                        District Judge: Hon. James F. McClure


                        Submitted under Third Circuit LAR 34.1(a)
                                   on October 2, 2009

                  Before: AMBRO, GARTH and ROTH, Circuit Judges

                                    (filed: May 6, 2010 )




                                       OPINION


ROTH, Circuit Judge:

       Stanford Smith appeals two issues arising from his sentencing in the Middle

District of Pennsylvania for illegally reentering the United States, in violation of 8 U.S.C.
§ 1326(a), 6 U.S.C. § 202(3) and (4), and 6 U.S.C. § 557. The first issue is whether the

District Court failed to take into account all of the sentencing factors set forth in 18

U.S.C. § 3553(a). The second issue is whether the District Court violated Smith’s Sixth

Amendment rights by imposing an inappropriately high enhancement to the sentence

recommended under the Sentencing Guidelines. The District Court had jurisdiction under

18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. For the reasons

discussed below, we will affirm.

       Because the facts are well known to the parties, we will discuss them only briefly.

Stanford Smith pleaded guilty to a charge of illegally reentering the country. He had

previously been removed for drug-related offenses. The District Court found the

sentencing guideline range to be between 46 - 57 months, and it imposed a 57 month

sentence.

       We find that the District Court did not abuse its discretion when considering the

relevant factors under 18 U.S.C. § 3553(a). See United States v. King, 454 F.3d 187, 194

(3d Cir. 2006) (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (“After

Booker, this Court must evaluate the reasonableness of a sentence in light of the factors in

18 U.S.C. § 3553(a) . . . . ‘To determine if the court acted reasonably in imposing the

resulting sentence, we must first be satisfied the court exercised its discretion by

considering the relevant factors.’”) “While a sentencing court must consider all of the §

3553(a) factors, it does not have to discuss and make findings as to each factor so long as



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the record otherwise makes clear that it took the factors into account.” United States v.

Starnes, 583 F.3d 196, 218 (3d Cir. 2009). The District Court considered Smith’s family

ties and the harsh consequences he would suffer as an illegal alien who would be

deported upon completing his sentence, and it ultimately concluded that despite these

factors, a longer sentence was justified.

       Reviewing de novo the District Court’s application of the Sentencing Guidelines,

see United States v. Diaz, 592 F.3d 467, 470 (3d Cir. 2010), we find that the District

Court properly took into consideration Smith’s prior convictions when determining the

appropriate sentence enhancement. The District Court enhanced Smith’s base offense

level by sixteen points due to his prior two convictions for drug trafficking and firearm

possession. U.S.S.G. § 2L1.2(b)(1)(A). Smith alleges this was in error because the

indictment only stated that he had been found guilty of aggravated assault, which carries

an enhancement of eight points. U.S.S.G. § 2L1.2(b)(1)(C). Smith does not dispute that

his prior convictions would justify the sixteen point increase; rather, his argument is that

the government’s decision to only include “aggravated felony” in the plea agreement

precludes the District Court from applying anything but the aggravated felony

enhancement. We disagree. District Courts may rely upon past convictions when making

sentencing decisions, regardless of whether those convictions were in the indictment. See

United States v. Grier, 475 F.3d 556, 562 (3d Cir. 2007) (en banc) (“Judicial factfinding

in the course of selecting a sentence within the permissible range does not offend the



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Fifth and Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt.”)

      For the reasons set forth above, we will affirm the judgment of the District Court.




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