                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0776n.06
                           Filed: December 22, 2008

                                           No. 07-1728

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    WESTERN DISTRICT OF MICHIGAN
CHARLES NECOBE SMITH,                            )
                                                 )
       Defendant-Appellant.                      )



       Before: GIBBONS and COOK, Circuit Judges; and STEEH, District Judge.*


       PER CURIAM.           After defendant-appellant Charles Necobe Smith pleaded guilty to

possessing a firearm as a felon in exchange for the government dismissing a drug count, the district

court sentenced him to 60 months in prison. Smith mounts three challenges to how the district court

used conduct underlying the charged, but later dismissed, drug count to calculate his advisory

Sentencing Guidelines range. For the reasons that follow, we affirm.


                                                 I.


       Police executed a search warrant and raided Smith’s apartment, storming through the front

door as Smith ran out the rear. As police pursued Smith, they observed him toss a flask, later

       *
       The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 07-1728
United States of America v. Charles Necobe Smith


discovered to contain crack cocaine. Inside Smith’s apartment, officers found more crack and a

semiautomatic pistol. Smith admitted possessing the crack but denied possessing the pistol, claiming

that a friend left it in his apartment and he had no way to dispose of it.


        A federal grand jury indicted Smith for possessing a firearm as a felon and possessing crack

cocaine with intent to distribute. He agreed to plead guilty to the firearm offense in exchange for

the government dismissing the drug count. At sentencing, the district court—noting that Smith

admitted possessing at least 10 grams of crack with an intent to distribute—found that Smith

possessed both the firearm and the crack, but declined to find that Smith used the firearm in

connection with drug trafficking.


        Smith faced a 37-to-46-month Guidelines range on the firearm offense, a range the district

court worried did not adequately account for Smith’s admitted involvement in drug activity. Had

Smith been convicted of the drug offense, the district court noted, “he would have been looking at

[a] 60 month minimum.” Attentive to this disparity between the advisory Guidelines range that

Smith’s plea yielded and the range that would have applied to his admitted drug possession, the

district court informed Smith that it intended to impose a sentence above the advisory range. The

court then postponed sentencing to give Smith an opportunity to evaluate whether to withdraw his

plea.


        Smith adhered to his guilty plea, and the district court sentenced him “as if he were found

guilty of the drug offense,” imposing 60 months imprisonment with this comment:

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No. 07-1728
United States of America v. Charles Necobe Smith


       [T]he guideline range . . . is 70 to 87 months if he just takes the drug charge, no gun
       enhancement, and the quantity—and give him three points off for acceptance [of
       responsibility]. So it’s 70-87 months. I think I should at least, in fairness, . . .
       impose a sentence at the bottom of what the guideline range is for the amount of
       drugs that he had after giving him acceptance of responsibility, which would be 60
       months incarceration . . . .


       Smith timely appealed.


                                                  I.I


       Smith urges us to remand for resentencing, arguing that the district court committed a

significant procedural error by failing to properly calculate the Guidelines range that would have

applied to the dismissed drug count. See United States v. Gall, 128 S. Ct. 586, 597 (2007).

According to Smith, that range should have been scored at 57-to-71 months, not the 70-to-87 months

that the district court referenced. This argument carries no weight because Gall only requires “a

district court [to] begin all sentencing proceedings by correctly calculating the applicable Guidelines

range.” Id. at 596 (emphasis added). Smith admits that the district court correctly calculated the

applicable range for the firearm offense to which Smith pleaded guilty. The district court then

properly exercised its discretion to select a longer sentence that accounted for the conduct underlying

the dismissed drug count. Smith therefore lacks a valid argument for procedural error.


       We note, as Smith concedes, that the district court intended to “impose a sentence at the

bottom of what the guideline range” would have been for the dismissed drug offense. His 60-month



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No. 07-1728
United States of America v. Charles Necobe Smith


sentence falls just 3 months short of the bottom of the 57-to-71 range that Smith insists would have

applied to the drug offense, meaning that even under Smith’s theory, the sentence fits.


       Smith’s brief also advanced a Sixth Amendment right-to-trial-by-jury challenge, contending

that the district court impermissibly relied upon the conduct underlying the dismissed drug count to

calculate his advisory Guidelines range. At oral argument, however, Smith withdrew this argument

and conceded that our decision in United States v. Conway, 513 F.3d 640 (6th Cir. 2008), remains

good law and allows district courts to consider dismissed conduct in calculating an advisory

Guidelines range. Id. at 645. This concession resolves Smith’s jury-trial-right claim.


       Smith’s concession also resolves his final argument—that the district court erred by

characterizing his drug possession as “relevant conduct,” U.S.S.G. § 6B1.2, after it already found

that he did not possess the firearm “in connection with” drug-trafficking, U.S.S.G. § 2K2.1(b)(6).

Smith admits that U.S.S.G. § 5K2.21, which allows courts to “depart upward to reflect the actual

seriousness of the offense based on conduct . . . underlying a charge dismissed as part of a plea

agreement,” compels affirming his sentence unless courts invalidate § 5K2.21 on Sixth-Amendment

grounds. But Smith’s concession at oral argument—that Conway permits a district court to use

dismissed conduct when calculating an advisory Guidelines range, 513 F.3d at 645—forecloses this

Sixth Amendment challenge. The district court thus properly viewed the drug possession as relevant

conduct for sentencing purposes.




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No. 07-1728
United States of America v. Charles Necobe Smith


                                                  III.


       We affirm the district court’s sentence.




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