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United States v. Smith

United States District Court, E.D. North Carolina, Southern Division

July 18, 2018

UNITED STATES OF AMERICA
v.
DAVID ELIJAH SMITH, Defendant.

          ORDER

          JAMES C. DEVER III Chief United States District Judge

         On November 30, 2017, David Elijah Smith ("Smith" or "defendant") pleaded guilty, without a written plea agreement, to one count of transferring a firearm to a prohibited person in violation of 18 U.S.C. § 922(d) (count ten) and one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) (count eleven). See [D.E. 354]. The statutory maximum for count ten is ten years' imprisonment. The statutory maximum for count eleven also is ten years' imprisonment unless the Armed Career Criminal Act ("ACCA") applies. See 18 U.S.C. § 924(e). Smith's presentence investigation report ("PSR") recommended that Smith be subject to the ACCA based on his three prior convictions for (1) Delaware third-degree burglary, (2) assault with a deadly weapon with intent to kill inflicting serious injury, and (3) possession with intent to distribute cocaine base. See PSR [D.E. 440] ¶¶ 78, 114, 118. Under the ACCA, Smith faced a statutory minimum on count eleven of fifteen years' imprisonment and a statutory maximum of life imprisonment.

         On June 13, 2018, the court issued a Rule 32(h) notice, stating that the court doubted whether Smith's Delaware third-degree burglary conviction qualified as a predicate offense under the ACCA, and informed the parties that it was contemplating an upward departure under U.S.S.G. § 4A1.3(a)(1). See [D.E. 454]; Fed. R. Grim. P. 32(h). On June 19, 2018, the court held Smith's sentencing hearing. See [D.E. 459]. At the sentencing hearing, the court concluded that Smith's criminal record did not make him an armed career criminal under the ACCA. After ruling on certain other objections, the court calculated Smith's total offense level to be 23, his criminal history category to be HI, and his advisory guideline range on counts ten and eleven to be 57 to 71 months' imprisonment. The court then exercised its discretion to upwardly depart, upwardly departed to an advisory guideline range of 100 to 125 months' imprisonment, considered all relevant factors under 18 U.S.C. § 3553(a), and sentenced Smith to 120 months' imprisonment on each count to run concurrently. The court enters this order to explain Smith's sentence.

         I.

         A.

         On June 18, 2018, Smith's counsel moved to withdraw [D.E. 458]. At the sentencing hearing, Smith's counsel again moved to withdraw because Smith wanted to represent himself. The court conducted an extensive colloquy with Smith to ensure his request to represent himself was (1) clear and unequivocal, (2) knowing, intelligent, and voluntary, and (3) timely. See Faretta v. California, 422 U.S. 806, 832-36 (1975); United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000). As part of that process, the court reminded Smith that he has a constitutional right to have a lawyer represent him and that the court could appoint Smith a new lawyer and continue the sentencing hearing if Smith so desired. The court then questioned Smith concerning Smith's legal knowledge and reminded Smith of the maximum statutory penalties he faced for his offenses. The court also advised Smith that if the court permitted Smith to proceed pro se, then he would take the case as he found it. Smith then made a knowing, intelligent, and voluntary decision to proceed pro se and to represent himself at the sentencing hearing. Thus, the court granted counsel's motion to withdraw and allowed Smith to proceed pro se.

         B.

         David Smith is the step-grandfather of Kejuan Smith, a five star general in the Nine Trey Billy Badass street gang, a subset of the United Blood Nation. See PSR ¶ 15. This case arose out of law enforcement's investigation into the criminal activities of the Nine Trey Billy Badass street gang in and around Wilmington, North Carolina. See Id. The investigation revealed that gang members were trafficking narcotics and firearms, and engaging in violence in and around Wilmington, North Carolina. See Id. On July 13, 2016, law enforcement obtained a federal Title m wiretap on Kejuan Smith's cellular telephone. See Id. ¶ 16. In late July 2016 and early August 2016, intercepted communications revealed that Kejuan Smith had an argument with the leader of a United Blood Nation set in Goldsboro, North Carolina. See Id. ¶26. As a result of this argument, Kejuan Smith contacted his subordinate gang members and directed them to gather the gang's firearms to prepare for a shoot-out with members of the United Blood Nation set in Goldsboro. On August 1, 2016, when Kejuan Smith was gathering firearms for the shoot-out, David Smith agreed to sell Kejuan Smith three .45 caliber handguns and a ballistic vest. See Id. ¶ 27. In later conversations, David Smith informed Kejuan Smith that he was able to obtain only one .45 caliber handgun and a ballistic vest. David Smith then sold those two items to his step-grandson Kejuan Smith. On August 4, 2016, law enforcement executed a search warrant at Kejuan Smith's girlfriend's residence. During the search, law enforcement recovered thirteen firearms, including the .45 caliber handgun and the ballistic vest that David Smith sold to Kejuan Smith.

         Before Smith's sentencing hearing, the United States Probation Officer ("probation") prepared the PSR. See [D.E. 440]. After detailing Smith's extensive criminal history and calculating a criminal history category of HI, probation determined that Smith was an armed career criminal based on three prior convictions: (1) a Delaware conviction for third-degree burglary, see PSR ¶ 64; (2) a North Carolina conviction for assault with a deadly weapon with intent to kill inflicting serious injury, see Id. ¶ 70; and (3) a federal conviction for possession with intent to distribute cocaine base (crack). See id. ¶¶ 73, 78, 114, 118.

         Next probation determined Smith's base offense level was 20 under U.S.S.G. § 2K2.1(a)(4)(A). Probation increased Smith's base offense level by two levels under U.S.S.G. § 2K2.1(b)(1)(A), which applies if the offense involved between three and seven firearms. See Id. ¶ 107. Probation increased Smith's base offense level by four levels under U.S.S.G. § 2K2.1(b)(5), which applies if the defendant trafficked firearms. See Id. ¶ 108. Probation also increased Smith's base offense by four levels under U.S.S.G. § 2K2.1 (b)(6), which applies if the defendant transferred any firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense. See id.¶109. Finally, probation reduced Smith's adjusted offense level of thirty by three levels for acceptance of responsibility. See id. ¶¶ 114-117.

         Smith made four objections to the PSR. See PSR Add. First, Smith argued that he did not commit the two instant offenses while under a criminal justice sentence, and thus, he improperly received two criminal history points. Cf PSR ¶ 77. Second, Smith objected to receiving a four-level increase for trafficking firearms under U.S.S.G. § 2K2.1 (b)(5). Third, Smith objected to receiving a four-level increase for transferring a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense. Lastly, Smith objected to receiving the ACCA enhancement and argued that his Delaware third-degree burglary conviction is not a predicate offense. During the sentencing hearing, Smith added an additional objection contending that his base offense level should not have been increased under U.S.S.G. § 2K2.1(b)(1)(A) because his offense did not involve between three and seven firearms.

         At Smith's sentencing hearing, the court heard arguments from the government and Smith concerning Smith's objections. The court found that Smith properly received two criminal history points for committing the offense while under a criminal justice sentence. Under section 4A1.1 (d), two criminal history points are added "if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." The term "criminal justice sentence" means "a sentence countable under § 4A1.2... having a custodial or supervisory component, although active supervision is not required for this subsection to apply." U.S.S.G. §4Al.l, ApplicationNote4. Furthermore, a defendant "who commits the instant offense while a violation warrant from a prior sentence is outstanding (e.g., a probation . . . violation warrant) shall be deemed to be under a criminal justice sentence for the purposes of this provision if that sentence is otherwise countable, even if that sentence would have expired absent such warrant." Id. Smith was on probation until February 17, 2016. Before the end of his probation, Smith violated the terms of his probation and absconded. See PSR ¶¶ 74, 77. Law enforcement issued a warrant for Smith's arrest which tolled his time on probation. See Id. After Smith was arrested, his probation was extended for an additional year. See Id. On August 1, 2016, Smith committed the instant offenses. Thus, Smith was on probation at the time of the offenses. See U.S.S.G. § 4A1.1(d), Application Note 4; United States v. Weathers, 95 Fed.Appx. 31, 32 (4th Cir. 2004) (per curiam) (unpublished); United States v. Davis, 313 F.3d 1300, 1305-06 (11th Cir. 2002).

         The court then heard evidence on Smith's second and third objections, as well as his objection concerning the number of firearms involved in the offenses. The government presented the testimony of Officer Lonnie Waddell, a police officer for the Wilmington Police Department and task force officer for the FBI. After considering the evidence presented, the government's arguments, and Smith's arguments, the court credited Officer Waddell's testimony and found that Smith initially agreed to sell three .45 caliber handguns and a ballistic vest to Kejuan Smith. Ultimately, Smith sold only one .45 caliber handgun and a ballistic vest to Kejuan Smith. The court then ruled on each of the objections.

         As for Smith's objection concerning a two-level increase under U.S.S.G. § 2K2.1(b)(1)(A), section 2K2.1(b)(1)(A) directs a court to count all firearms that were "unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed." See U.S.S.G. § 2K2.1(b)(1)(A), Application Note 5. As noted, Smith originally agreed to ...


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