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No. 09-4118
Submitted:
September 8, 2011
Decided:
PER CURIAM:
Desmond
Jamar
Smith
pled
guilty
without
plea
appealed,
Rodriquez,
553
judgment
of
asserting
U.S.
377,
conviction,
that
389
under
(2008)
charging
United
(cautioning
document
or
Smith
States
that
plea
v.
when
colloquy
that
the
application
conviction
of
is
qualifying
sentencing
offense
enhancement),
the
under
4B1.4(b)(3)(B)
U.S.
Sentencing
(2008),
and
the
Guidelines
Armed
Manual
Career
(USSG)
Criminal
Act
failed
to
consider
his
particular
criminal
history
in
to
determine
whether
conviction
is
for
crime
consider[s]
the
maximum
aggravated
sentence
that
could
be
imposed for that crime upon a defendant with the worst possible
criminal history).
Smith
judgment
and
remanded
the
case
to
this
court
for
imprisonment,
but
only
when
the
finding
is
part
of
the
In United States v.
Simmons, ___ F.3d ___, 2011 WL 3607266, *3 (4th Cir. Aug. 17,
2011),
we
considered
the
question
that
Smith
raises
and
We
order
affirming
remaining
Smiths
assignments
of
sentence.
3
conviction
error
and
pertaining
rejecting
to
his
career
they
criminal
were
not
predicate
punishable
convictions
by
term
were
of
improper
imprisonment
Cir. 2010).
that (1) there was error; (2) the error was plain; and (3) the
error affected his substantial rights.
Olano, 507 U.S. 725, 732 (1993).
plain error.
First,
although
the
Government
asserts
that
North
imprisonment,
Smiths
prior
state
the
record
Government
level
and
concedes
the
that
lack
of
based
on
statutory
See
also
For
hold
purposes
that
of
the
plain
district
error
courts
review,
error
[p]lain
was
is
Olano,
of trial was settled and clearly contrary to the law at the time
of appeal.
Cir. 2005) (quoting Johnson v. United States, 520 U.S. 461, 468
(1997)); accord United States v. David, 83 F.3d 638, 645 (4th
Cir. 1996) (holding that an error is plain when an objection at
trial would have been indefensible because of existing law, but
a
supervening
settled
law).
decision
When
prior
Smith
to
appeal
objected
to
reverses
his
that
well-
Guidelines
range
See Simmons,
fact,
had
error
Smith
also
not
affected
been
Smiths
classified
substantial
as
an
armed
rights.
career
criminal, his Guidelines range would have been lower than the
5
one adopted by the district court and if the district court were
to sentence Smith to the top of his non-ACCA Guidelines range
(as it did under the ACCA Guidelines range), Smiths sentence
would be less than the 210-month sentence he received.
See USSG
ch. 5, pt. A.
Because Smith received a longer sentence than he would
have received were it not for his ACCA classification, we notice
the
district
sentence
and
nonetheless
courts
remand
reinstate
sentencing
for
error
resentencing
our
previous
and
under
order
vacate
Smiths
Simmons. *
affirming
We
Smiths
to
his
sentence.
We
dispense
with
oral
argument