United States v. Smith
United States v. Smith
Opinion of the Court
ORDER
Carl Smith recruited into prostitution four young women, two of them only 17 and the others 18 and 21. He was charged with one count of transporting a minor in interstate commerce for the purpose of sex trafficking, 18 U.S.C. § 2423(a), two counts of sex trafficking of a minor, id. § 1591(a), (b)(2), and two counts of sex trafficking by force, id. § 1591(a). He pleaded guilty to the § 2423(a) count and admitted driving one of the 17-year-olds from Wisconsin to Illinois with the intent that she engage in prostitution. Smith also stipulated to having committed the sex-trafficking offenses against the other victims. The district court calculated a guidelines sentence of life imprisonment and imposed a below-guidelines term of 30 years plus 5 years of supervised release with 13 standard and 8 special conditions.
Smith has filed a notice of appeal. His appointed lawyer asserts that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Smith opposes counsel’s motion. See CIR. R. 51(b). Counsel has submitted a brief that explains the nature of the ease and addresses issues that an appeal of this kind might be expected to involve. Because the analysis in the brief appears to be thorough, we limit our review to the subjects the lawyer discusses, plus the additional issues that Smith presents in opposition. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
In his Rule 51(b) response, Smith says he would argue that the district court erred by denying his motion to withdraw his guilty plea. In that motion Smith asserted that before pleading guilty he did not have enough time to discuss the evidence, or proposed plea with his lawyer, and that he pleaded guilty only because he felt pressured to do so. Appellate counsel discusses this motion in her Anders submission, and we agree with her conclusion that contesting the court’s ruling would be frivolous.
The district court first had concluded that Smith was given ample time to discuss the proposed guilty plea with his attorney. Indeed, the change-of-plea hearing was continued once so that the parties could address concerns first raised during
Concerning his prison term, Smith argues in his Rule 51(b) response that his total offense level was overstated because, he insists, the district court erroneously added five levels for engaging in a pattern of activity involving prohibited sexual conduct. See U.S.S.G. § 4B1.5(b). That increase, Smith contends, resulted in double counting in conjunction with the application of U.S.S.G. § 2G1.3(d)(l) (which raised Smith’s offense level because his stipulation to committing the crimes charged in the four counts dismissed as part of the plea agreement resulted in a multiple-count upward adjustment), or, alternatively, because the 5-level increase overstates the seriousness of the offense conduct. The double-counting argument, though, is foreclosed by United States v. Von Loh, 417 F.3d 710, 714-15 (7th Cir. 2005). Smith’s other theory is not a challenge to the application of § 4B 1.5(b) but an appeal to the sentencing judge’s discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Shamah, 624 F.3d 449, 457 (7th Cir. 2010); United States v. Nelson, 491 F.3d 344, 347 (7th Cir. 2007).
Counsel then questions whether Smith could challenge the reasonableness of his prison sentence, and we agree with her that such a challenge would be frivolous. Smith’s 30-year sentence is below his guidelines sentence of life. And counsel has not identified a reason to disregard the presumption that a below-guidelines sentence is reasonable. See United States v. Pollock, 757 F.3d 582, 590 (7th Cir. 2014); United States v. Banas, 712 F.3d 1006, 1012 (7th Cir. 2013).
Apart from the term of imprisonment, counsel and Smith also consider contesting the amount of restitution awarded to the victims of Smith’s sex-trafficking offenses. In his plea agreement Smith agreed to pay restitution to the victim of the count of conviction as well as to the three victims of the charged counts that were dismissed in exchange for his guilty plea. Smith would argue that the amount of restitution imposed is excessive because he and the victims did not keep records of money received from prostitution and thus, Smith asserts, there was “no way” for the district court to determine the portion he kept.
Lastly, counsel reports that Smith is “unconcerned” with the conditions of his supervised release, and Smith does not dispute this representation in his Rule 51(b) response. We thus do not consider any potential nonfrivolous arguments concerning Smith’s supervised release. See United States v. Bryant, 754 F.3d 443, 447 (7th Cir. 2014).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
Reference
- Full Case Name
- United States v. Carl B. SMITH
- Status
- Published