           Case: 13-13028   Date Filed: 03/13/2014   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13028
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:09-cr-00128-MEF-TFM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

RASHEEN JAHMAL SMITH,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                            (March 13, 2014)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Rasheen Jahmal Smith appeals the above-guideline 14-month sentence he

received after his supervised release was revoked under 18 U.S.C. § 3583. Upon

careful review of the record and the parties’ briefs, we vacate and remand.

      We have seen Smith’s case before. Initially the district court sentenced

Smith to 60-months imprisonment and four years of supervised release based in

part on his convictions for crack cocaine offenses. On direct appeal, we held that

Smith should be resentenced under the Fair Sentencing Act of 2010 (FSA). United

States v. Smith, 481 F. App’x 540, 545 (11th Cir. 2012) (per curiam). When he

was resentenced, his guideline range was 30 to 37 months, and he was sentenced to

time served, or 31-months imprisonment. Around seven months later, the

probation officer filed a petition to revoke Smith’s supervised release for seven

alleged violations, including possession of a firearm.

      For the revocation proceedings, Smith appeared before the same district

court judge, who said he remembered Smith and thought he had been required to

resentence Smith previously because he “got some credit off of a sentence based

on the Fair Sentencing Act.” The district court then varied upward from Smith’s

guideline range of 4 to 10 months and resentenced him to 14-months

imprisonment. The court explained that it varied upward from the guideline range

because Smith “got a break from the sentence that [he] received in this original

case.” Later, the court again stated that the variance was justified because Smith


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had received a “break” when he was resentenced under the FSA. The court added:

“If stupid was a crime, you would be on death row.”

      On appeal, Smith argues that his 14-month sentence was procedurally and

substantively unreasonable. He claims that because the district court relied on a

supposed “break” Smith received, it relied on a clearly erroneous fact which was

an impermissible factor. Smith also emphasizes that he did not receive a “break”

when he was resentenced under the FSA and instead merely received a legal

sentence as provided by the terms of the statute.

      We review a challenged sentence first for procedural reasonableness and

then for substantive reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.

Ct. 586, 597 (2007). A sentence is procedurally reasonable if the district court

properly calculated the guideline range, treated the Guidelines as advisory,

considered the 18 U.S.C. § 3553(a) factors, did not select a sentence based on

clearly erroneous facts, and adequately explained the chosen sentence. Id. A

factual finding is clearly erroneous if we are left with the “definite and firm

conviction that a mistake has been committed,” even if there is evidence to support

the finding. United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011).

      With regard to substantive reasonableness, we will only vacate a sentence

involving an upward variance if we have the “definite and firm conviction” that the

district court clearly erred by weighing the § 3553(a) factors and that the


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defendant’s sentence was outside the range of reasonable sentences dictated by the

facts. United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012) (quoting

United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)). “The district court

has wide discretion to decide whether the section 3553(a) factors justify a

variance.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010). “A

district court abuses its discretion when it (1) fails to afford consideration to

relevant factors that were due significant weight, (2) gives significant weight to an

improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (citation omitted). We review de novo, as a question of law,

whether a factor considered by the district court is impermissible. United States v.

Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). A sentence based

entirely upon an impermissible factor is unreasonable because such a sentence does

not achieve the purposes of § 3553(a). Id.

      Even if this Court finds a substantive or procedural error, we only remand

for resentencing if the defendant was harmed by the error. Williams v. United

States, 503 U.S. 193, 203, 112 S. Ct. 1112, 1120–21 (1992). A defendant is

harmed if we cannot conclude, based on the record as a whole, that the district

court would have imposed the same sentence absent the erroneous factor. Id. We

should affirm if we have “fair assurance” that the error did not substantially affect


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the sentence. United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)

(citation omitted).

      Smith’s sentence was procedurally unreasonable because the district court’s

conclusion that Smith’s reduced sentence under the FSA was a “break,” in the

sense that it was an unjustified benefit, was clearly erroneous. See Barrington, 648

F.3d at 1195. The FSA was an act of Congress intended to reduce the historical

sentencing disparity between crack and powder cocaine offenses. Congress’s

decision to reduce this disparity was not a “break” for which prisoners lawfully

entitled to be resentenced could be held accountable later. Thus, the district court

was required to sentence Smith under the FSA after this Court vacated and

remanded his original sentence in light of Dorsey v. United States, 567 U.S. __,

132 S. Ct. 2321 (2012). The district court’s sentence was therefore procedurally

unreasonable, as the determination that Smith’s resentencing was an undeserved

benefit was clearly erroneous. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.

      In addition to being procedurally unreasonable, the district court’s reliance

on an impermissible factor in sentencing Smith was substantively unreasonable as

well. By imposing an upward variance based on the conclusion that Smith

benefitted from a “break” provided by the FSA, the district court penalized Smith

for receiving a lawful sentence authorized by Congress. Given that the district

court said that the upward variance was due to this factor, Smith’s sentence was


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substantially affected by the impermissible factor such that the sentence did not

fulfill the purposes of § 3553. See Velasquez Velasquez, 524 F.3d at 1252.

      Finally, the district court’s error was not harmless. Although the district

court indicated that a lower sentence would not have served the purposes of

§ 3553(a), the record as a whole indicates that the district court relied heavily on its

belief that Smith had unjustifiably benefitted from the FSA. See Williams, 503

U.S. at 203, 112 S. Ct. at 1120–21. Given the nature of the district court’s repeated

statements, the record does not leave this Court with the “fair assurance” that the

district court would have imposed the same sentence without consideration of the

improper factor. See Mathenia, 409 F.3d at 1292. Therefore, we vacate Smith’s

sentence and remand for resentencing.

      VACATED AND REMANDED.




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