US v. Kelvin Smith

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 25-4304

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KELVIN SCOTT SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, Chief District Judge. (1:24-cr-00145-CCE-1)

Submitted: July 16, 2026 Decided: July 20, 2026

Before WILKINSON, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Eric D. Placke, Interim Federal Public Defender, Tiffany T. McGregor,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant. Dan Bishop, United States Attorney, Julie C.
Niemeier, Assistant United States Attorney, Emily K. Norris, Third-Year Law Student,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kelvin Scott Smith pled guilty, pursuant to a written plea agreement, to possession
of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(8). The district court
sentenced Smith to 72 months’ imprisonment, above his advisory Sentencing Guidelines
range of 51 to 63 months. On appeal, Smith contends that his sentence is substantively
unreasonable because the district court’s justification for the upward variance included
factors that were already incorporated into Smith’s Guidelines calculation. Specifically,
he asserts that his advisory Guidelines range already accounted for his prior violent felony
conviction and history of firearm possession. We affirm.
We review a defendant’s sentence for reasonableness, applying a deferential
“abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007). We must
first “evaluate procedural reasonableness, determining whether the district court committed
any procedural error, such as improperly calculating the Guidelines range, failing to
consider the [18 U.S.C.] § 3553(a) factors, or failing to adequately explain the chosen
sentence,” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020), “including an
explanation for any deviation from the Guidelines range,” Gall, 552 U.S. at 51. If we
conclude that the sentence is procedurally reasonable, we then review the substantive
reasonableness of the sentence, considering “the totality of the circumstances.” Id.; see
Nance, 957 F.3d at 212.
We conclude that Smith’s sentence is procedurally reasonable. The district court
properly calculated the advisory Guidelines range, considered the parties’ arguments,
allowed Smith to allocute, and adequately explained why it rejected Smith’s mitigation

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arguments in imposing a sentence nine months above the top of the advisory Guidelines
range.
In reviewing an upward variant sentence for substantive reasonableness, “we
consider whether the sentencing court acted reasonably both with respect to its decision to
impose such a sentence and with respect to the extent of the divergence from the sentencing
range.” United States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation
marks omitted). We afford “due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance, and the fact that we might reasonably
have concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.” United States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal
quotation marks omitted). The ultimate inquiry is whether, considering the totality of the
circumstances, the district court “abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United States v. Mendoza-Mendoza,
597 F.3d 212, 216 (4th Cir. 2010).
We conclude that Smith’s sentence is substantively reasonable. The district court
carefully balanced the § 3553(a) factors and acted within its broad discretion in giving
more weight to Smith’s criminal history. See Nance, 957 F.3d at 215 (noting “district
courts have extremely broad discretion when determining the weight to be given each of
the § 3553(a) factors” (internal quotation marks omitted)). Noting Smith’s lengthy and
continuous criminal history since the age of 18 and his repeated firearm offenses after
serving a sentence for felony homicide, the court was concerned that a Guidelines sentence
would be too low. And although the court acknowledged the mitigating factors presented

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by Smith’s counsel, especially Smith’s youth when he committed his first offense, it
explained that his youth was less of a mitigating factor considering his repeated criminal
conduct. Ultimately, the court concluded that a small upward variance was appropriate
given the need to protect the public, provide appropriate punishment, and provide adequate
deterrence. Thus, considering the totality of the circumstances, we discern no abuse of
discretion in the district court’s determination that a modest upward variance was
warranted given its assessment of the § 3553(a) factors.
Accordingly, we affirm the criminal judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.

AFFIRMED