UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4328

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

ALEX SMITH,

Defendant – Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

Richard D. Bennett, Senior District Judge. (1:19−cr−00205−RDB−2)

Submitted: October 5, 2022 Decided: February 1, 2023

Before DIAZ, RICHARDSON, and HEYTENS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: G. Arthur Robbins, CHESAPEAKE MERIDIAN, Annapolis, Maryland, for 

Appellant. Erek L. Barron, United States Attorney, Brandon K. Moore, Assistant United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Alex Smith and his accomplice Cornell Slater tried to rob a “Restaurant Depot” in 

Baltimore. During the botched attempt, Slater shot an employee in the face, causing 

permanent physical and psychological injuries. Smith and Slater fled empty-handed but 

were later apprehended. Slater pleaded guilty, receiving 360 months in prison. Smith went 

to trial.

During the trial, Smith requested that the district court define “reasonable doubt” to 

the jury. The court declined and the jury found him guilty on all counts. At sentencing, 

the district court applied an upward variance from the Guidelines range of 135 to 168 

months in prison, given the seriousness of the offense, Smith’s past criminal conduct, and 

the potential disparity between Smith’s and Slater’s sentences. Smith received 240 months.

Smith raises two issues on appeal. First, he argues the district court erred in not 

providing a jury instruction on the meaning of “reasonable doubt.” He objects to our 

precedent leaving this decision to the district court’s discretion. Second, he argues the 

district court abused its discretion when it applied an upward variance from his Guidelines

range. We disagree with both.

We typically review a district court’s refusal to give a specific jury instruction for 

abuse of discretion. United States v. Herder, 594 F.3d 352, 359 (4th Cir. 2010). But Smith 

doesn’t directly challenge the district court’s denial. Instead, he asks us to reconsider our 

precedent that “although the district court may define reasonable doubt to a jury upon 

request, the district court is not required to do so.” United States v. Walton, 207 F.3d 694, 

696–97 (4th Cir. 2000) (en banc). Smith suggests that the “failure to instruct leaves juries 

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to guess what ‘proof beyond a reasonable doubt’ may be,” raising the potential for the jury 

to “appl[y] an unconstitutional understanding.” Appellant’s Br. at 10, 16. In other words, 

he objects to the discretion our circuit affords.

But we can’t accept Smith’s argument. A binding decision of our circuit can be

overruled only by “a subsequent en banc opinion of this court or a superseding contrary 

decision of the Supreme Court.” Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 

(4th Cir. 1993) (cleaned up). But Smith doesn’t identify contrary en banc or Supreme 

Court precedent.1

 We, as a panel, can’t grant Smith’s requested relief.

Even if we could, we would decline Smith’s request to change our longstanding 

practice, which is rooted in our belief that “attempting to explain the words ‘beyond a 

reasonable doubt’ is more dangerous than leaving a jury to wrestle with only the words 

themselves.” United States v. Hornsby, 666 F.3d 296, 310–11 (4th Cir. 2012). Although 

we “discourage” such instructions, Walton, 207 F.3d at 699, we leave it to the district courts 

to determine whether they are warranted, a rule in line with the Supreme Court and our 

sister circuits.2 See, e.g., Victor v. Nebraska, 511 U.S. 1, 5 (1994) (“[T]he Constitution 

1 In fact, Smith acknowledges that “the Supreme Court has held that the Constitution 

neither prohibits trial courts from defining reasonable doubt, nor requires them to do so.” 

Appellant’s Br. at 9 (citing Victor v. Nebraska, 511 U.S. 1 (1994)).

2

 The district court may have thought our circuit banned instructions on reasonable 

doubt. When denying the instruction request, the court stated, “It really is not permitted. 

The district court probably should not have a reasonable doubt . . . .” J.A. 97B. The court 

didn’t finish its thought as Smith’s counsel interrupted. Smith didn’t object to this

characterization by the district court in the moment, nor does he raise it now as evidence 

of abuse of discretion. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (failure to 

exercise discretion is an abuse). Thus, we won’t review it here. But we take this 

opportunity to emphasize that our rule doesn’t forbid such instructions.

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neither prohibits trial courts from defining reasonable doubt nor requires them to do so as 

a matter of course.”); United States v. Ashrafkhan, 964 F.3d 574, 578 (6th Cir. 2020) (“Put 

simply, courts are not required to define reasonable doubt.”).

Next, we see no error in the court imposing an upward variance. We review a 

sentence for both procedural and substantive reasonableness. See Gall v. United States, 

552 U.S. 38, 51 (2007). 

We first ensure that the district court committed no significant procedural error, such 

as improperly calculating the Guidelines range, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen sentence. Id. 

We find no procedural error here. The district court properly made “an 

individualized assessment based on the facts presented,” and “‘state[d] in open court’ the 

particular reasons supporting its chosen sentence.” United States v. Carter, 564 F.3d 325, 

328 (4th Cir. 2009) (quoting 18 U.S.C. § 3553(c)). Through the lens of § 3553(a), the court 

considered Smith’s history, the crime itself, and Slater’s sentence. The court concluded 

that “the factors here in terms of danger to the public, threat to the public, [and] disparity 

in sentencing” made 20 years “more than appropriate.” J.A. 189. This explanation is fully

adequate.

Finding no procedural error, we “consider the substantive reasonableness of the 

sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51. A sentence 

outside the Guidelines range doesn’t trigger a presumption of unreasonableness, and we 

“give due deference to the district court’s decision that the § 3553(a) factors, on a whole, 

justify the extent of the variance.” Id.; see also United States v. Evans, 526 F.3d 155, 162 

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(4th Cir. 2008) (Court of Appeals should give “due deference” to district court’s reasoning, 

even if it concludes a different sentence is appropriate). 

No substantive issues stick out. As explained above, the court engaged in a 

“particularized assessment” of the facts of the case. See United States v. Spencer, 848 F.3d 

324, 329 (4th Cir. 2017). Any inferences the district court drew, such as that Smith posed 

a danger to the public, were well within the “bounds of its discretion.” Id. 

Smith’s counters are meritless. His claim that the “Statement of Reasons” form 

lacked sufficient comments to warrant an upward variance is irrelevant; the court need only 

provide justification in open court, as it did here. 18 U.S.C. § 3553(c). Smith’s other 

arguments on this front fare no better. 

We affirm the district court’s judgment. And we dispense with oral argument 

because the facts and legal contentions are adequately presented in the materials before this 

court and argument would not aid the decisional process.

AFFIRMED

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