United States v. Smith

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-20658
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KEVIN ROSHARD SMITH,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:01-CR-737-ALL
_________________________
December 18, 2002
Before JONES, SMITH, and SILER,*
Circuit Judges.
JERRY E. SMITH, Circuit Judge:**
Kevin Smith appeals his conviction of, and
* Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
** Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 1 of 4 --

2
sentencing for, violating 18 U.S.C. § 922(g)(1)
(2001), which prohibits convicted felons from
possessing firearms in and affecting interstate
commerce. We affirm the conviction but
vacate the sentence and remand for
resentencing.
I.
A.
Off-duty police officers who were working
second jobs as security in a grocery store park-
ing lot discovered Smith and three other men
drinking alcoholic beverages in a car parked in
the lot; the police also smelled marihuana com-
ing from the car. As the men were exiting, at
the officers’ request, the officers saw Smith,
who occupied the front passenger seat, make
two overt moves toward the floorboard. They
saw a Taurus .38 caliber revolver in plain view
where Smith was seated. The weapon had
been manufactured in Brazil and had been
imported into the United States through Flori-
da.
B.
Smith was charged with being a felon in
possession of a firearm in and affecting
interstate commerce under 18 U.S.C. §§
922(g)(1) and 924(a)(2). Smith pleaded guilty
without benefit of a plea agreement. At re-
arraignment, the government stated the factual
basis for the plea, and Smith posed no
objections.
The presentence investigation report
(“PSR”) calculated Smith’s total offense level
under the sentencing guidelines. Smith had
two prior felony convictions, one for
unauthorized use of a motor vehicle
(“UUMV”) and one for delivery of a
controlled substance. The PSR determined
that the latter was a crime of violence.1 The
PSR recommended no reduction for
acceptance of responsibility under U.S.S.G. §
3E1.1. It found that Smith had not withdrawn
voluntarily from criminal conduct, because,
while he was on pretrial supervision, three of
his urine specimens tested positive for illegal
drugs, and he did not parti cipate in drug
counseling as ordered.
Smith filed written objections to the PSR.
He objected to the denial of credit for
acceptance of responsibility. He argued that
his discharge from the federal drug counseling
program was because the program was twice
rescheduled and because, after a magistrate
judge had revoked his bond, he was
incarcerated before he could attend the
rescheduled meeting. He asserted that his
admission of guilt saved the government from
trial preparation.
At sentencing, Smith further argued that he
was remorseful for his conduct, that his
positive drug tests resulted from his drug
addiction and inability to handle his drug
problem, and that refusing to find acceptance
of responsibility based on his continued drug
use amounted to punishment for his status as
a drug addict. He also urged that UUMV
should not be considered a crime of violence
under the sentencing guidelines.
The district court overruled the objections.
It granted Smith a downward departure of
four offense levels to 20 and sentenced him, at
the bottom of the guideline range, to 70
months of imprisonment. It further ordered
1 “[I]f the defendant had at least two prior
felony convictions of either a crime of violence or
a controlled substance offense,” U.S.S.G. § 2K2.1-
(a)(2), the appropriate base offense level is 24.

-- 2 of 4 --

3
Smith to pay a $100 special cost assessment,
to serve three years’ supervised release, to
submit to drug detection and treatment as
directed by the probation officer, and to incur
the costs associated with the detection and
treatment based on ability to pay, as
determined by the probation officer.
II.
Smith challenges the factual basis for his
plea, contending that the facts to which he
pleaded failed to establish sufficiently the in-
terstate commerce element of the § 922(g)(1)
offense. We review a sufficiency challenge to
a guilty-plea conviction for plain error where
the issue is raised for the first time on appeal.
See United States v. Marek, 238 F.3d 310, 315
(5th Cir.) (en banc), cert. denied, 534 U.S.
813 (2001). “[N]otwithstanding an
unconditional plea of guilty, we will reverse on
direct appeal where the factual basis for the
plea as shown of record fails to establish an
element of the offense of conviction.” United
States v. White, 258 F.3d 374, 380 (5th Cir.
2001).
The constitutionality of § 922(g), in
circumstances such as these, was most recently
considered and affirmed in United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001),
cert. denied, 534 U.S. 1150 (2002). Smith’s
claim is foreclosed by circuit precedent.
III.
Smith argues that the district court erred by
denying him a three-level decrease for
acceptance of responsibility on the basis of his
drug use while on pretrial release. We review
the sentencing court’s determination “with
even more deference than the pure ‘clearly
erroneous’ standard.” United States v. Flucas,
99 F.3d 177, 180 (5th Cir. 1996). “The
defendant bears the burden of demonstrating
that he is entitled to the reduction” for
acceptance of responsibility under the
guidelines. Id. We will not disturb the ruling
“‘unless it is without foundation.’” United
States v. Maldonado, 42 F.3d 906, 913 (5th
Cir. 1995) (quoting United States v. Roberson,
872 F.2d 597, 610 (5th Cir. 1989)).
The guidelines direct the sentencing court
to reduce the offense level “[i]f the defendant
clearly demonstrates acceptance of
responsibility for his offense[.]” U.S.S.G.
§ 3E1.1(a). “The entry of a guilty plea does
not entitle a defendant to a reduction as a
matter of right.” Flucas, 99 F.3d at 180. The
district court properly weighs whether the
defendant has voluntarily terminated or
withdrawn from criminal conduct or
associations. United States v. Rickett, 89 F.3d
224, 227 (5th Cir. 1996).
We consistently have upheld a sentencing
court’s refusal to credit a defendant with an
acceptance-of-responsibility adjustment based
a positive test for drug use, either while on
pretrial release or pending sentence. Flucas,
99 F.3d at 180; Rickett, 89 F.3d at 227; United
States v. Watkins, 911 F.2d 983, 984-85 (5th
Cir. 1990). In Flucas, we specifically rejected
the argument that the district court had ruled
improperly because the defendant’s drug use
“did not show a lack of contrition but, instead,
was a result of his drug addiction.” 99 F.3d
at 180.
While under pretrial supervision, Smith sub-
mitted three urine specimens, and each tested
positively for drugs. Across the three tests,
Smith tested positively for cocaine, marihuana,
codeine, morphine, opiates, and PCP. We find
no error in the refusal to grant a downward
adjustment for acceptance of responsibility.

-- 3 of 4 --

4
IV.
Smith contends that the district court im-
permissibly delegated its authority when it or-
dered him to incur costs associated with his
drug and alcohol protection and treatment
based on ability to pay, as determined by the
probation officer. Because Smith did not ob-
ject to his sentence as pronounced in the dis-
trict court, we review only for plain error.
United States v. de la Pena-Juarez, 214 F.3d
594, 600 (5th Cir. 2000).
The imposition of special conditions
relating to a determination of a defendant’s
ability to pay the costs of drug treatment and
other programs does not constitute an
unlawful delegation of authority to the
probation officer. United States v. Warden,
291 F.3d 363, 366 (5th Cir.), cert. denied, 123
S. Ct. 35 (2002). The conditions of
supervised release reviewed in Warden are
analogous to those required by the district
court here. We find no error.
V.
Smith challenges the district court’s
conclusion that his conviction of UUMV is a
crime of violence for purposes of sentencing.
We review the district court’s interpretation
and application of the guidelines de novo.
United States v. Charles, 301 F.3d 309, 313
(5th Cir. 2002) (en banc).
UUMV is not a crime of violence within the
meaning of the guidelines. Id. at 314
(overruling United States v. Jackson, 220 F.3d
635 (5th Cir. 2000)). Smith’s base offense
level therefore should have been 20, not 24.
U.S.S.G. § 2K2.1(4)(A). Were Smith to re-
ceive the four-level U.S.S.G. § 5K2.0
downward departure on resentencing, the
appropriate guideline imprisonment range
would be 46 to 57 months. U.S.S.G. Ch. 5,
pt. A. We must reverse and remand for
resentencing where changes in sentencing law
between sentencing and appeal benefit the
defendant. United States v. Miranda, 248
F.3d 434, 445 (5th Cir.), cert. denied, 534
U.S. 980 (2001).
The judgment of conviction is AFFIRMED,
and the judgment of sentence is VACATED
and REMANDED for proceedings consistent
with this opinion.

-- 4 of 4 --