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  • United States v. Smith, 4th Cir. (2005)

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    The United States Court of Appeals for the Fourth Circuit affirmed Daryl Smith's convictions but vacated his 360-month sentence and remanded the case for resentencing. The court found that while the district court did not err in its rulings during trial, it did violate Smith's Sixth Amendment rights by imposing a sentence that was based on judicially-found facts rather than facts found by a jury. Under United States v. Booker, judicial fact-finding that increases the sentencing guidelines range is unconstitutional. Therefore, the case was remanded for resentencing in light of Booker.

    Original Description:

    Filed: 2005-07-11 Precedential Status: Non-Precedential Docket: 04-4420

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    The United States Court of Appeals for the Fourth Circuit affirmed Daryl Smith's convictions but vacated his 360-month sentence and remanded the case for resentencing. The court found that while the district court did not err in its rulings during trial, it did violate Smith's Sixth Amendment rights by imposing a sentence that was based on judicially-found facts rather than facts found by a jury. Under United States v. Booker, judicial fact-finding that increases the sentencing guidelines range is unconstitutional. Therefore, the case was remanded for resentencing in light of Booker.

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    United States v. Smith, 4th Cir. (2005)

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    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed Daryl Smith's convictions but vacated his 360-month sentence and remanded the case for resentencing. The court found that while the district court did not err in its rulings during trial, it did violate Smith's Sixth Amendment rights by imposing a sentence that was based on judicially-found facts rather than facts found by a jury. Under United States v. Booker, judicial fact-finding that increases the sentencing guidelines range is unconstitutional. Therefore, the case was remanded for resentencing in light of Booker.

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-4420

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    DARYL W. SMITH, a/k/a D-Nice,
    Defendant - Appellant.

    Appeal from the United States District Court for the Northern
    District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
    District Judge. (CR-03-39)

    Submitted:

    May 25, 2005

    Decided:

    July 11, 2005

    Before LUTTIG, KING, and DUNCAN, Circuit Judges.

    Affirmed in part, vacated in part, and remanded by unpublished per


    curiam opinion.

    Kevin T. Tipton, CLAGETT, GOREY, CASTEEL & TIPTON, P.L.L.C.,


    Fairmont, West Virginia, for Appellant. Thomas E. Johnston, United
    States Attorney, John C. Parr, Assistant United States Attorney,
    Wheeling, West Virginia, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Daryl W. Smith appeals his convictions and 360-month
    sentence for possession with intent to distribute five or more
    grams of cocaine base, conspiracy to distribute fifty or more grams
    of cocaine base, and aiding and abetting the distribution of
    cocaine base within 1000 feet of a playground.

    Finding no error in

    Smith convictions, we affirm the convictions. However, because the


    district courts imposition of sentence violated Smiths Sixth
    Amendment right to trial by jury, we vacate the sentence and remand
    for further proceedings.
    Smith claims that the district court erred by denying his
    motion for mistrial after one of the jurors made an inappropriate
    comment during deliberations.

    The decision of whether to grant a

    motion for a mistrial is left to the broad discretion of the trial


    court.

    United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.

    1997).

    Under the circumstances of this case, we see no abuse of

    discretion.

    The jury promptly suspended deliberations when the

    comments were made and referred the matter to the court.

    The court

    voir dired each juror individually and determined each was willing
    to consider all of the evidence fairly and impartially.

    Finally,

    the court dismissed the offending juror before allowing the jury to

    - 2 -

    return to deliberations.

    Under these circumstances we find no

    error.1
    Smith next claims the district court erred by refusing to
    allow him to impeach a Government witness with a fourteen year old
    bribery conviction.

    Relevant prior convictions may be used for

    impeachment purposes subject to certain limitations. Fed. R. Evid.


    609(a).

    These limitations preclude the use of a conviction more

    than ten years old except where the probative value of such a
    conviction substantially outweighs its prejudicial value.
    Evid. 609(b).

    Fed. R.

    This case does not involve the sort of rare and

    exceptional circumstances that would warrant use of the conviction


    at issue for impeachment.

    See United States v. Cavender, 578 F.2d

    528, 531 (4th Cir. 1978).


    Smith also claims he was denied his Sixth Amendment right
    to

    confront

    witnesses

    by

    the

    district

    courts

    ruling

    that

    effectively precluded him from impeaching Government witnesses with


    memoranda of interviews completed by Government agents.

    Smith

    asserts the material falls within the scope of the Jencks Act, 18
    U.S.C. 3500 (2000).

    This court has repeatedly held that such

    memoranda fall outside the scope of


    by the witness.

    the Jencks Act unless adopted

    See United States v. Roseboro, 87 F.3d 642, 645

    To the extent Smith assigns error to the district courts


    decision to allow the jury to continue deliberations with eleven
    jurors, we find no error. See United States v. Fisher, 912 F.2d
    728, 733 (4th Cir. 1990).
    - 3 -

    (4th Cir. 1996); United States v. Hinton, 719 F.2d 711, 722 (4th
    Cir.

    1983).

    Furthermore,

    Smith
    the

    court

    concedes
    did

    not

    no
    err

    such
    in

    adoption
    precluding

    was

    made.

    Smith

    from

    providing the witnesses with copies of the memoranda in order that


    they could adopt or reject the memoranda as their own statements.
    Accordingly, we find no error.
    Finally,

    Smith

    claims

    that

    the

    district

    courts

    imposition of sentence violates his Sixth Amendment right to trial


    by jury. Because we conclude that the district courts application
    of the Sentencing Guidelines resulted in an increase to Smiths
    Guidelines range on the basis of facts not found by the jury beyond
    a reasonable doubt, we agree.2

    See United States v. Booker, 125 S.

    Ct. 738 (2005); United States v. Hughes, 401 F.3d 540 (4th Cir.
    2005).

    Accordingly, we vacate Smiths sentence and remand for

    further proceedings consistent with Booker and Hughes.3

    We affirm

    Just as we noted in United States v. Hughes, 401 F.3d 540,


    545 n.4 (4th Cir. 2005), [w]e of course offer no criticism of the
    district judge, who followed the law and procedure in effect at the
    time of Smiths sentencing.
    See generally Johnson v. United
    States, 520 U.S. 461, 468 (1997) (stating that an error is plain
    if the law at the time of trial was settled and clearly contrary
    to the law at the time of appeal).
    3

    Although the Sentencing Guidelines are no longer mandatory,


    Booker makes clear that a sentencing court must still consult
    [the] Guidelines and take them into account when sentencing. 125
    S. Ct. at 767.
    On remand, the district court should first
    determine the appropriate sentencing range under the Guidelines,
    making all factual findings appropriate for that determination.
    The court should consider this
    See Hughes, 401 F.3d at 546.
    sentencing range along with the other factors described in 18
    U.S.C. 3553(a) (2000), and then impose a sentence. Id. If that
    - 4 -

    Smiths convictions.
    facts

    and

    materials

    legal
    before

    We dispense with oral argument because the

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in

    the

    aid

    the

    decisional process.

    AFFIRMED IN PART,
    VACATED IN PART, AND REMANDED

    sentence falls outside the


    explain its reasons for the
    3553(c)(2) (2000).
    Id.
    statutorily prescribed range

    Guidelines range, the court should


    departure as required by 18 U.S.C.
    The sentence must be within the
    and . . . reasonable. Id. at 546-47.
    - 5 -

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