                                                                                    FILED
                                                                        United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                        Tenth Circuit

                               FOR THE TENTH CIRCUIT                            July 6, 2018
                           _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court




UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-3086
                                                   (D.C. No. 2:16-CR-20022-JAR-1)
JACOB L. SMITH,                                                (D. Kan.)

      Defendant - Appellant.



                           _________________________________

                                        ORDER
                           _________________________________

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.
                  _________________________________

       This matter is before the court on the appellant’s Petition for Rehearing En Banc.

Upon consideration, panel rehearing is granted in part and for the limited purpose of

adding a new citation to the decision. Panel rehearing is otherwise denied. A copy of the

revised and amended Order & Judgment is attached to this order and shall be filed

effective today’s date.
       The Petition was also circulated to all of the judges of the court who are in regular

active service. As no judge on the panel or the en banc court requested that a poll be

called, the request for en banc reconsideration is denied.




                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           July 6, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-3086
                                                  (D.C. No. 2:16-CR-20022-JAR-1)
JACOB L. SMITH,                                               (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.
                  _________________________________

      Jacob Smith appeals following his convictions for bank robbery and

discharging a firearm during and in relation to a crime of violence. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      Smith pled guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a)

and (d), and discharging a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A). Smith’s Presentence Investigation Report

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
recommended a Guidelines range of 97 to 121 months for the first count to run

consecutively with the mandatory 120 months for the second count. The government

sought an upward variance of six offense levels and an upward departure of four

additional levels. The defense sought a sentence on the lower end of the initial

Guidelines range.

      The district court granted the government’s motion in part, upwardly varying

and departing to impose a sentence of 180 months on the first count and 120 on the

second. Smith now appeals.

                                           II

      Smith challenges his conviction under § 924(c)(1)(A), arguing that his bank

robbery conviction does not qualify as a crime of violence. Since the initiation of

Smith’s appeal, we have held that bank robbery does so qualify under the elements

clause of U.S.S.G. § 4B1.2(a)(1). United States v. McCranie, 889 F.3d 677, 679–81

(10th Cir. 2018). Because the elements clause of § 924 is identical to that contained

in the Guidelines, compare U.S.S.G. § 4B1.2(a)(1), with § 924(c)(3)(A), we reach the

same conclusion.

                                          III

      Smith also argues that the district court failed to adequately explain its

sentencing decision. The government contends that because Smith failed to object

below, we should review only for plain error. See United States v. Ruiz-Terrazas,

477 F.3d 1196, 1199 (10th Cir. 2007). Smith counters that the district court did not

give his counsel an opportunity to object. However, the district court did ask for

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objections after tentatively announcing its sentencing decision. Further, attorneys are

generally expected to object even if a court does not explicitly ask them if they would

like to. United States v. Craig, 794 F.3d 1234, 1238 (10th Cir. 2015) (“It is a

lawyer’s job to object—by way of interruption, if the circumstances warrant—when

the court is in the midst of committing an error.”), overruled on other grounds in

United States v. Bustamonte-Conchas, 850 F.3d 1130 (10th Cir. 2017). We thus

review this issue for plain error. Smith “must demonstrate that there is (1) an error;

(2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Mann, 786 F.3d 1244, 1249 (10th Cir. 2015) (quotation omitted).

       A sentencing court must “state in open court the reasons for its imposition of

the particular sentence.” 18 U.S.C. § 3553(c). The explanation must be adequate “to

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

sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). In the course of deciding

to impose a significant upward variance and departure in this case, the district court

noted the mitigating and aggravating factors the parties had cited, including Smith’s

age, the influence his co-defendants had over him, his history of mental health

problems, and the dangerous nature of his conduct. The court then ruled that a

sentence of 180 months for the first count and 120 months for the second would be

appropriate, in light of these countervailing facts. We conclude this explanation was

not plainly inadequate.



                                              3
      Smith additionally contends that the district court erred by failing to announce

the adjusted Guidelines range before imposing his sentence. But this omission

cannot be reasonably interpreted to have “seriously affect[ed] the fairness, integrity,

or public reputation of judicial proceedings.” Mann, 786 F.3d at 1249. Finally, the

court’s written statement of reasons—which indicated that one of the reasons for the

variance imposed was to avoid unwarranted sentencing disparities among

defendants—is not in conflict with the district court’s statement that it would not

vary upward by a further two levels to bring Smith’s sentence to his co-defendant’s.

                                           IV

      AFFIRMED.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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