United States District Court, E.D. North Carolina, Southern Division
C. DEVER III Chief United States District Judge
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
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.
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.
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.
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.
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. ¶¶
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
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
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.
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 ...