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


6-22-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3675




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Recommended Citation
"USA v. Smith" (2007). 2007 Decisions. Paper 895.
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                                              NOT PRECEDENTIAL


      IN THE UNITED STATES COURT
               OF APPEALS
          FOR THE THIRD CIRCUIT


                  NO. 05-3675



        UNITED STATES OF AMERICA

                       v.

                TRINA SMITH

                            Trina R. Smith,
                            Appellant




       On Appeal From the United States
                  District Court
    For the Middle District of Pennsylvania
      (D.C. Crim. Action No. 04-cr-00069)
   District Judge: Hon. Christopher C. Conner


 Submitted Pursuant to Third Circuit LAR 34.1(a)
                 June 15, 2007

BEFORE: McKEE, STAPLETON and NYGAARD,
             Circuit Judges

         (Opinion Filed: June 22, 2007)
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Appellant Trina Smith pled guilty to one count of unlawful distribution of crack

cocaine. She was sentenced to 110 months of imprisonment, a $100 assessment, and

three years of supervised release. Because she suffers from end-stage renal failure and

undergoes kidney dialysis three times a week, she is serving her sentence at the Federal

Medical Center in Carlswell, Texas, as requested by the District Court.

       At the sentencing hearing, the District Court determined, based on Smith’s

admissions during the guilty plea colloquy, that she had sold two ounces, or 56.7 grams,

of cocaine base in 2004. It therefore properly determined that Smith’s Base Offense

Level was 32. A three-point credit for acceptance of responsibility reduced this to 29.

Because of two prior controlled substance felony convictions, Smith qualified as a career

offender and her Criminal History Category of VI. The government filed a motion for a

downward departure pursuant to U.S.S.G. § 5K1.1 based on her cooperation, and the

Court agreed that a five-level reduction was appropriate. Based on a base offense level of

24 and a Criminal History Category of VI, the Guideline range was determined to be 100

to 125 months. After considering this range and the factors set forth in 18 U.S.C. §

3553(a), the District Court determined that 110 months of incarceration was a reasonable

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sentence for Smith’s crime.

       In this appeal, Smith’s appellate counsel filed a brief, an appendix, and a motion to

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). In that brief,

he examined in some detail whether Smith’s sentence was reasonable and whether trial

counsel had rendered effective assistance of counsel, reaching an affirmative conclusion

in each instance. In addition, Smith filed a pro se informal brief raising a number of

additional issues and asking that we overturn her conviction as well as her sentence.

       We agree, essentially for the reasons explained in the brief of Smith’s counsel, that

the sentence imposed by the District Court was clearly a reasonable one. The District

Court correctly determined the Guideline offense level and Criminal History Category

and, appropriately applying the relevant facts, determined that Smith was entitled to a

five-level reduction for her cooperation. Having thus properly determined the Guideline

range, the District Court expressly recognized its advisory character and proceeded to

consider the § 3553(a) factors before exercising its discretion to determe a reasonable

sentence within the Guideline range.1



   1
    We note that this case does not present the issue we addressed in United States v.
Gunter, 462 F.3d 237 (3d Cir. 2006). We there held that a District Court erred when, in
response to an argument that it should impose a sentence in a crack distribution case
below the Guideline range based on the Guideline differential between crack and powder
cocaine, it found it had no discretion to do so. Smith did not advance such an argument
before the District Court, and there is no record basis for believing that the District Court
believed it lacked such discretion. To the contrary, the District Court expressly affirmed
that all aspects of the Guidelines were advisory and subject to its discretion under §
3553(a), including its discretion with respect to “the nature of the offense.”

                                              3
       We agree with the government that this is not one of those very rare cases in which

an ineffective assistance of trial court counsel claim can appropriately be addressed on

direct appeal. Our affirmance of the judgment of the District Court will be without

prejudice to Smith’s raising her ineffective assistance of counsel claim in a habeas corpus

proceeding in the District Court in which an appropriate record can be developed.

       Smith’s informal brief challenges the “subject matter and territorial jurisdiction” of

the District Court to hear the charge against her. The information in this case charges a

violation of a federal criminal statute, 21 U.S.C. § 841, which is alleged to have occurred

in Harrisburg. Accordingly, there can be no question about the jurisdiction of the United

States District Court for the Middle District of Pennsylvania to hear the charge against

Smith. The many other, non-jurisdictional arguments raised in the pro se brief were

waived by Smith’s guilty plea.

       The judgment of the District Court will be affirmed without prejudice to Smith’s

raising her ineffective assistance of counsel claim in a habeas corpus proceeding in the

District Court. Counsel’s motion to withdraw will be granted.




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