United States v. Smith
United States v. Smith
Opinion of the Court
SUMMARY ORDER
Defendant-appellant Michael Smith, Jr. appeals from a July 8, 2005 judgment of the United States District Court for the Western District of New York (Siragusa, J.) convicting him, following a jury trial, of possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); possession of cocaine base, in violation of 21 U.S.C. § 844(a); and failure to appear at sentencing, in violation of 18 U.S.C. §§ 3146(a)(1) and (b)(1)(A)®. He was sentenced principally to a term of 324 months’ imprisonment and three years’ supervised release. We assume the parties’ familiarity with the underlying facts and procedural history of this case.
Reviewing the district court’s decision for unreasonableness, see United
Further, we reject Smith’s claim that the district court erred when it determined his quantity of drugs for sentencing purposes. Smith’s reliance on United States v. Shonubi, 103 F.3d 1085, 1089 (2d Cir. 1997), is unavailing. The “specific evidence” standard set forth in Shonubi requires “evidence that points specifically to a drug quantity for which the defendant is responsible,” in order to calculate a defendant’s base level offense. 103 F.3d at 1089-90. Here, officers observed Smith selling cocaine base and seized $4,500 in cash, bundled in rubber bands by denomination, from a bedroom wastebasket that also contained hundreds of individually packaged bags of cocaine base, a small scale, and a loaded revolver. Smith admitted in a signed statement that he kept his gun and drugs in the wastebasket, which he knew also contained $5,000 in cash. In light of the evidence particular to Smith’s drug possession, including Smith’s own admissions, we find that the district court’s calculation of the drag quantity was not clearly erroneous. See Prince, 110 F.3d at 924. Accordingly, we find no procedural error in the district court’s sentence.
Finally, we reject Smith’s claim that the district court erred by considering acquitted conduct to enhance his sentence. Smith concedes that this argument is foreclosed by our decision in United States v. Vaughn, 430 F.3d 518, 526-27 (2d Cir. 2005), cert. denied sub nom. Lindo v. United States, 547 U.S. 1060, 126 S.Ct. 1665, 164 L.Ed.2d 405 (2006), but we acknowledge that Smith raises this challenge to preserve it.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of conviction is AFFIRMED.
Reference
- Full Case Name
- United States v. Michael A. SMITH, Jr.
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- 2 cases
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- Published