                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1715




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                                                              NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    _____________

                                    No. 08-1715
                                   _____________

                          UNITED STATES OF AMERICA,

                                          v.

                                 JOSEPH SMITH, JR.,
                                       a/k/a
                                    JOE SMITH,
                                       a/k/a
                                JOE MONTGOMERY,
                                       a/k/a,
                                  JOSEPH E. SMITH

                                       Joseph Smith, Jr.,

                                               Appellant


                   On Appeal From the United States District Court
                        for the Eastern District of Pennsylvania
                                     (07-cr-451-1)
                    District Judge: Honorable Lawrence F. Stengel

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 12, 2009

           Before: FUENTES, CHAGARES, and TASHIMA,* Circuit Judges




      *
        Honorable A. Wallace Tashima, Senior United States Circuit Judge for the
United States Court of Appeals for the Ninth Circuit, sitting by designation.
                                   (Filed : March 26, 2009 )

                                        _____________

                                 OPINION OF THE COURT
                                     _____________

CHAGARES, Circuit Judge.

          Joseph Smith appeals from the District Court’s judgment of sentence. We will

affirm.

                                               I.

          Smith pleaded guilty to one count of possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). The District Court determined that his United

States Sentencing Guidelines advisory range was 46 to 57 months of imprisonment,

coupled with a $5,000 to $50,000 fine.

          The District Court sentenced Smith to 57 months of imprisonment and three years

of supervised release, and it fined him $15,000. Smith then filed this appeal, contesting

his prison term on the ground that the District Court ignored relevant sentencing law and

his fine on the ground that the District Court unreasonably determined his ability to pay.

                                               II.

          The District Court had jurisdiction pursuant to 28 U.S.C. § 3231, and this Court

has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

          This Court reviews the District Court’s sentence for reasonableness, evaluating

both its procedural and substantive underpinnings using a deferential abuse of discretion

                                               2
standard. Gall v. United States, 128 S. Ct. 586, 594 (2007). The District Court’s

interpretation of sentencing law, however, is reviewed de novo. United States v.

Langford, 516 F.3d 205, 208 (3d Cir. 2008). This Court reviews the District Court’s

factual findings concerning whether the defendant was able to pay a fine, and its ultimate

determination of that fine, for clear error. United States v. Seale, 20 F.3d 1279, 1284 (3d

Cir. 1994).

                                                III.

                                                A.

          We first address Smith’s challenge to his within-Guidelines prison term.

          Federal sentencing law “contains an overarching provision instructing district

courts to impose a sentence sufficient, but not greater than necessary, to accomplish the

goals of sentencing.” Kimbrough v. United States, 128 S. Ct. 558, 570 (2007) (internal

quotation marks omitted). This provision, sometimes called the “parsimony provision,”

states:

                   The court shall impose a sentence sufficient, but not greater than necessary .
          . . to reflect the seriousness of the offense, to promote respect for the law, and to
          provide just punishment for the offense; to afford adequate deterrence to criminal
          conduct; to protect the public from further crimes of the defendant; and to provide
          the defendant with needed educational and vocational training, medical care, or
          other correctional treatment in the most effective manner . . . .

18 U.S.C. § 3553(a)(2)(A)-(D).

          Smith argues that the District Court ignored the parsimony provision in imposing a

57-month prison term, which is at the high end of the advisory range. He points to one

                                                 3
statement made by the court during sentencing:

              I might note that in the defendant’s sentencing memorandum, [defense
       counsel] advocates very strongly and very eloquently for his client. But the
       parsimony provision is — in section 3553(a) is not an invitation to impose the
       minimally sufficient sentence . . . . I understand the parsimony provision. I
       certainly take it into account, but I don’t think that’s a mandate to impose in every
       case, and certainly not in this case, the minimally sufficient sentence.

Smith Br. at 10 (quoting Appendix (App.) 118-19). He contends that this statement

amounts to an admission that the District Court did not impose the lightest sentence that

sufficiently serves the purposes identified in § 3553(a)(2). We disagree.

       Put in its proper context, this snippet from the sentencing hearing merely states the

unremarkable proposition that the parsimony provision did not require the District Court

to impose the lightest sentence that would suffice to survive appellate review — not that

the parsimony provision did not require it to impose the lightest sentence that would

suffice to serve § 3553(a)(2)’s enumerated goals. The defendant, in his memorandum

advocating for a below-Guidelines sentence, emphasized that the District Court should

feel free to be lenient because its ruling likely would not be disturbed on appeal. See,

e.g., App. 17 (“Importantly, ‘[t]he fact that the appellate court might reasonably have

concluded that a different sentence was appropriate is insufficient to justify reversal of the

sentence.’” (quoting Gall, 128 S. Ct. at 597)); id. (“Because ‘[d]istrict courts have an

institutional advantage’ over the [Sentencing] Commission and the appellate courts in

evaluating individual sentences, their sentences will rarely be disturbed on review.”

(quoting Gall, 128 S. Ct. at 598)); id. (“The Supreme Court has also made clear that a

                                              4
sentence outside the recommended Guidelines range is not ‘suspect’ or particularly

susceptible to being reversed on appeal as long as it is ‘adequately explain[ed] . . . to

allow for meaningful appellate review and to promote the perception of fair

sentencing.’”) (quoting Gall, 128 S. Ct. at 597); id. at 18 (“This Court is therefore free to

impose the sentence it deems appropriate — even if substantially below the Guidelines

range — without concern that its reasoning will be vulnerable on appeal.”).

       The excerpt Smith claims reveals a misunderstanding of relevant sentencing law

simply acknowledges and responds to these arguments. The District Court made clear

that it declined Smith’s repeated invitations to take its appellate prospects — rather than

just the law and the facts, and nothing more — into account in imposing sentence. Its

failure to state precisely that it was commenting on Smith’s argument about appellate

review sufficiency (rather than making a pronouncement about § 3553(a)(2) sufficiency)

does not make the sentence it imposed unreasonable. Cf. United States v. Dragon, 471

F.3d 501, 506 (3d Cir. 2006) (“[W]e are mindful that sentencing judges, who normally

state and resolve sentencing issues from the bench, make remarks that are unlikely to be a

perfect or complete statement of all the surrounding law.”).

       That the District Court perfectly understood the parsimony provision is confirmed

by statements it made that Smith did not excerpt in his brief. For example, the District

Court correctly stated:

       The Third Circuit has said that district judges are not required by the parsimony
       provision to routinely state that the sentence imposed is the minimum sentence

                                              5
       necessary to achieve the purposes set forth in section 3553(a)(2). The Third
       Circuit goes on to say, and this is in United States vs. Dragon, “We do not think
       that the not greater than necessary language requires as a general matter that a
       judge having explained why a sentence has been chosen also explain why some
       lighter sentence isn’t adequate.”

App. 118-19. In sum, the sentencing transcript, read in its entirety, shows that the District

Court correctly applied the parsimony provision and other relevant sentencing law.

                                             B.

       We next turn our attention to Smith’s challenge to his within-Guidelines fine.

       The Sentencing Guidelines provide that “the court shall impose a fine in all cases,

except where the defendant establishes that he is unable to pay and is not likely to become

able to pay any fine.” § 5E1.2(a). The defendant has the burden of proving inability to

pay. United States v. Torres, 209 F.3d 308, 312-13 (3d Cir. 2000). The court must make

an adequate record of its findings regarding the defendant’s present and future ability to

pay. United States v. Demes, 941 F.2d 220, 223-24 (3d Cir. 1991).

       Smith argues that the District Court’s factual findings prove that he was not able to

pay the $15,000 fine imposed. We disagree.

       The District Court prescribed an installment plan for repayment after release from

prison. Namely, the District Court ordered: “In the event the fine is not paid prior to the

commencement of supervision, the defendant shall satisfy the amount due in monthly

installments of not less than $250.00 . . . .” App. 8 (judgment and commitment order).

The pre-sentence investigation report (PSR) indicates that, up until the time he was



                                              6
arrested, he held jobs paying no less than $200 per week and as much as $500 per week.

PSR ¶¶ 61 ($200-per-week painting job; $300-per-week moving job), 63 ($500-per-week

disc-jockey job).1 Assuming Smith can obtain similar employment after incarceration,

this yields a yearly salary of $10,400 to $26,000. His outstanding debts totaled $3,224.

PSR ¶¶ 65-66. He resided with his parents and had no regular expenses. PSR ¶ 66.

       Smith must pay his fine by the time his supervised release term expires. See App.

6 (including fine payment schedule as term of supervised release). His release term is

three years. As of that time, Smith will likely have made $31,200 to $78,000, plus

whatever he was able to earn in prison through the Bureau of Prisons Inmate Financial

Responsibility Program. See PSR ¶ 68. This is more than enough to pay off his $3,224

debt and his $15,000 fine. Thus, the District Court did not clearly err in imposing the

$15,000 fine.2



       1
        It is not entirely clear whether these jobs were held singly or in combination.
Giving Smith the benefit of the doubt, we will assume he held only one of these jobs at
any one time.
       2
         Smith also argues that the District Court failed to consider the impact of the fine
on Smith’s financial dependents as required by 18 U.S.C. § 3572(a)(2). This assertion is
belied by the record. The District Court considered the PSR, App. 93, which reported no
child support expenses. The District Court considered Smith’s sentencing submissions,
namely his memorandum and supporting letters, App. 93-94, which discussed Smith’s
aspiration to be more involved (and, presumably, more financially involved) with his
children, see, e.g., App. 40-41. And the District Court allowed Smith to give a statement
in which he expressed his desire to “raise my family the right way,” App. 100, which
could be read to include a commitment to some measure of future financial support. The
District Court evidently did not give this factor controlling weight, but it was not required
to do so. All § 3572(a)(2) required was the “consider[ation]” evident from the record.

                                              7
                                    IV.

For the above reasons, we will affirm the District Court’s judgment of sentence.




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