United States of America v. Leo Smith, Iii

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3481
UNITED STATES OF AMERICA
v.
LEO SMITH, III,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 03:CR-03-45)
District Judge: Honorable Thomas I. Vanaskie
Submitted Under Third Circuit LAR 34.1(a)
September 12, 2007
Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.
(Filed: October 15, 2007)
OPINION OF THE COURT
FUENTES, Circuit Judge.
Leo Smith, III, appeals the order entered by the District Court following our
remand of this case for resentencing in light of the Supreme Court’s decision in United

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States v. Booker, 543 U.S. 220 (2005). In this appeal, Smith’s sole challenge is to his
sentence.
Pursuant to a written plea agreement, on January 28, 2004, Smith pled guilty to
one count of conspiracy to distribute cocaine base (crack) in violation of 21 U.S.C. § 846.
As a result of the agreement, the charge against Smith was amended to reflect no specific
quantity of cocaine base, so that Smith was subject to no minimum mandatory prison term
and a maximum possible prison term of 240 months. The District Court sentenced Smith
to 240 months in prison on October 22, 2004. On appeal, we remanded for resentencing
in light of the Supreme Court’s decision in Booker. On remand, Smith was again
sentenced to 240 months in prison. This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we will affirm.
Smith argues that the District Court erred because it failed to consider adequately
the Sentencing Commission’s 2002 Report, which recommended the use of a 20:1
crack/powder cocaine ratio, during its analysis of the relevant sentencing factors pursuant
to 18 U.S.C. § 3553(a). Instead, Smith contends that the District Court gave undue
weight to the 100:1 crack/powder cocaine ratio currently enshrined in the Guidelines.
We review the District Court’s sentence for reasonableness. United States v.
Cooper, 437 F.3d 324, 327 (3d Cir. 2006). The record here reflects that the District Court
arrived at its decision after it gave “meaningful consideration” to the relevant § 3553(a)
factors. United States v. Charles, 467 F.3d 828, 831 (3d Cir. 2006). At the resentencing
hearing, the District Court made the following findings: (1) Smith “had a leadership role

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in the offense,” (2) the crime was an “organized scheme,” and (3) “firearms were
involved in [the commission of the crime],” which added an “element of extreme danger.”
Sentencing Recons. Hr’g Tr. 17, June 29, 2006. The District Court also “[took] into
account” Smith’s “criminal history.” Id. In the end, the District Court found that “a
sentence of 240 months is a reasonable sentence, having taken into account the guideline
provisions, the guideline range in this case of 240 months, and all of those other
[§ 3553(a)] factors.” Id.
We are satisfied that the District Court’s sentencing methodology comports with
post-Booker requirements. We are also satisfied that the court recognized its authority to
impose a non-guidelines sentence, but chose not to do so. Indeed, we have held that a
District Court is “under no obligation to impose a sentence below the applicable
Guidelines range solely on the basis of the crack/powder cocaine differential.” United
States v. Gunter, 462 F.3d 237, 249 (3d Cir. 2006). The District Court in this case
specifically considered the crack/powder cocaine ratio, but found – given its analysis of
the relevant § 3553(a) factors – that “even if this were powder cocaine treated as if under
the 2002 report of the Sentencing Commission, [it] would still find a sentence of 20 years
to be a reasonable sentence under the circumstances.” Sentencing Recons. Hr’g Tr. 20,
June 29, 2006.
Accordingly, we will affirm the sentence imposed on Smith by the District Court.

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