22-1927

United States v. Smith

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 4th day of June, two thousand twenty-four. 

PRESENT: Reena Raggi,

 Steven J. Menashi, 

Alison J. Nathan, 

Circuit Judges. 

 ____________________________________________ 

UNITED STATES OF AMERICA, 

Appellee, 

v. No. 22-1927-cr

MICHAEL SMITH, 

Defendant-Appellant.

∗

 

 ____________________________________________ 

∗ The Clerk of Court is directed to amend the caption as set forth above. 
For Appellee: JOHN T. PIERPONT, JR., Assistant 

United States Attorney (Sandra S. 

Glover, Assistant United States 

Attorney, on the brief), for Vanessa 

Roberts Avery, United States 

Attorney for the District of 

Connecticut, New Haven, CT.

For Defendant-Appellant: JAY S. OVSIOVITCH, Federal Public 

Defender’s Office, Western 

District of New York, Rochester, 

NY.

Appeal from a judgment of the United States District Court for the District 

of Connecticut (Shea, J.). 

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the judgment of the district court of August 29, 2022, is

AFFIRMED. 

On April 15, 2021, Defendant-Appellant Michael Smith pleaded guilty to 

conspiracy to distribute and to possess with intent to distribute 100 grams or more 

of heroin and a detectable amount of cocaine base in violation of 21 U.S.C. § 846, 

§ 841(a), and § 841(b)(1)(B)(i) and (C); conspiracy to launder monetary instruments 

in violation of 18 U.S.C. § 1956(h); and possession of a firearm in furtherance of a 

narcotics trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i). As part of its 

investigation into Smith’s criminal conduct, the Drug Enforcement Administration 

obtained authorizations to intercept Smith’s telephone communications. During 

intercepted calls, Smith described shooting at a rival drug dealer and then making

threats against his victim after discovering that the victim had not been killed.

In Smith’s written plea agreement, the parties calculated Smith’s sentencing 

guidelines range to be 144-165 months, with a mandatory minimum sentence of 

120 months. The Probation Office prepared a pre-sentence report (“PSR”) that 
proposed a higher guidelines range of 170-197 months based on, among other 

reasons, a higher criminal history category than the parties had calculated. At the 

sentencing hearing on August 26, 2022, the district court accepted the PSR’s 

guidelines calculation and also accepted the PSR’s factual statements without 

objection. The district court sentenced Smith to a below-guidelines sentence of 156 

months of imprisonment, four years of supervised release, and a special 

assessment of $300. 

In explaining its sentence, the district court considered all of the § 3553(a) 

factors. The district court placed particular emphasis on the seriousness of Smith’s

conduct and expressed its view that “there’s really little doubt ... that the 

Government could have proven the intent required for attempted murder in this 

case.” App’x 129-30. The district court agreed with Smith that it should discount

Smith’s earlier convictions that the PSR—but not the plea agreement—had 

included in its guidelines calculation. Nonetheless, the district court characterized 

its sentence as “not a guidelines sentence” because it was “below the guidelines 

range.” Id. at 138. 

Smith now challenges the sentence as substantively unreasonable. We 

assume the parties’ familiarity with the underlying facts, the procedural history, 

and the issues on appeal. 

I 

In the sentencing context, “[w]e review the work of district courts under a 

deferential abuse-of-discretion standard” that “encompasses two components: 

procedural review and substantive review.” United States v. Cavera, 550 F.3d 180, 

189 (2d Cir. 2008) (internal quotation marks omitted). This review is not a “rubber 

stamp,” United States v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009), but it is “particularly 

deferential,” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We will 

conclude that a district court has abused its discretion only when it “(1) based its 

ruling on an erroneous view of the law, (2) made a clearly erroneous assessment 

of the evidence, or (3) rendered a decision that cannot be located within the range 

of permissible decisions.” United States v. Zhong, 26 F.4th 536, 551 (2d Cir. 2022) 
(quoting Warren v. Pataki, 823 F.3d 125, 137 (2d Cir. 2016)). A sentence meets this 

third prong and is substantively unreasonable when it is “so ‘shockingly high, 

shockingly low, or otherwise unsupportable as a matter of law’ that allowing [it]

to stand would ‘damage the administration of justice.’” Broxmeyer, 699 F.3d at 289 

(quoting Rigas, 583 F.3d at 123). “The measure of what is conscience-shocking is 

no calibrated yard stick.” United States v. Saleh, 946 F.3d 97, 107 (2d Cir. 2019)

(alteration omitted) (quoting United States v. Aldeen, 792 F.3d 247, 255 (2d Cir. 

2015)). In evaluating the substantive reasonableness of a sentence, “we use as our 

lodestar the parsimony clause of 18 U.S.C. § 3553(a), which directs sentencing 

courts to impose a sentence sufficient, but not greater than necessary, to comply 

with the factors set out in 18 U.S.C. § 3553(a)(2)—namely, retribution, deterrence, 

and incapacitation.” United States v. Park, 758 F.3d 193, 200 (2d Cir. 2014) (internal 

quotation marks, alteration, and footnote omitted). 

“As part of [this court’s] substantive reasonableness inquiry, we also look to 

the District Court’s own explanation at the sentencing hearing.” Id. at 201. Even if 

we disagree with some of the district court’s reasoning, we will uphold a district 

court’s sentence as long as there is at least one “independently sufficient 

justification for its variation from the Guidelines.” Cavera, 550 F.3d at 196. This 

court does not “substitute [its] own judgment for the district court’s on the 

question of what is sufficient to meet the § 3553(a) considerations in any particular 

case,” id. at 189, and “[t]he particular weight to be afforded aggravating and 

mitigating factors is a matter firmly committed to the discretion of the sentencing 

judge,” Broxmeyer, 699 F.3d at 289 (internal quotation marks omitted). 

“In the overwhelming majority of cases, a Guidelines sentence will fall 

comfortably within the broad range of sentences that would be reasonable in the 

particular circumstances.” United States v. Bryant, 976 F.3d 165, 181 (2d Cir. 2020)

(alteration omitted) (quoting United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 

2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007)). It is 

especially “difficult to find that a below-Guidelines sentence is unreasonable” for 

being too high. United States v. Gates, 84 F.4th 496, 505 (2d Cir. 2023) (quoting 

United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011)). 
II 

Because his sentence was below the guidelines range, Smith must identify 

some extraordinary aspect of the sentence for it to qualify as substantively 

unreasonable. He has not done so. His sentence fell “within the range of 

permissible decisions,” Zhong, 26 F.4th at 551, and was not “shockingly high ... or 

otherwise unsupportable as a matter of law,” Broxmeyer, 699 F.3d at 289. Smith was 

sentenced to 156 months, which was above the statutory minimum of 120 months 

but below the guidelines range of 170-197 months and in the middle of the 

guidelines range of 144-165 months that the parties recommended in the plea 

agreement. 

Smith’s arguments generally misunderstand the deferential standard under

which we review sentences. He focuses on the claim that his “sentence is greater 

than necessary to meet the purposes of sentencing” because it “was not the least 

severe sentence that would serve the purposes of sentencing.” Appellant’s Br. 13-

14. In Smith’s view, “[a] 120-month sentence would serve the requirements of 

§ 3553(a)” because it would be sufficiently severe. Id. at 15. This argument relies 

on a disagreement with how the district court weighed the factors, but we do not 

“substitute our own judgment for the district court’s on the question of what is 

sufficient to meet the § 3553(a) considerations in any particular case.” Cavera, 550 

F.3d at 189. In reaching its sentence, the district court considered the parsimony 

clause, and we see no reason why the district court’s view that its sentence was

“sufficient, but not greater than necessary, to comply with ... retribution, 

deterrence, and incapacitation,” Park, 758 F.3d at 200 (internal quotation marks 

and alteration omitted), was unreasonable. The parsimony clause does not require 

a district court to impose the statutory mandatory minimum sentence. 

Smith is no doubt correct that “[t]en years in prison is a serious sentence” 

and that “a 120-month sentence would be significantly longer than any previous 

sentence he received.” Appellant’s Br. 15-16. But the district court reasonably 

concluded that a serious sentence was warranted in light of the gravity of Smith’s 

conduct, which included an attempted murder, and after “walk[ing] through” the 
§ 3553(a) factors. Sentencing Tr., App’x 128. Smith has not shown that his belowguidelines sentence was shockingly high. 

* * * 

We have considered Smith’s remaining arguments, which we conclude are 

without merit. For the foregoing reasons, we affirm the judgment of the district 

court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court