UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5076

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARCIL ANTONIO SMITH, a/k/a Tony, a/k/a Tony Smith, a/k/a 

Fat Cat,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (7:95-cr-00081-F-1)

Submitted: October 29, 2010 Decided: November 19, 2010

Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. George E. B. Holding, United States Attorney, Anne 

M. Hayes, Jennifer P. May-Parker, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Marcil Antonio Smith appeals the thirty-six-month 

sentence imposed by the district court upon revocation of his

supervised release. We previously vacated a sixty-month 

revocation sentence and remanded for resentencing because the 

district court upwardly departed from the five-to-eleven month 

advisory range based on a finding that Smith had twice 

previously been accorded leniency during revocation proceedings 

after the court found that Smith had engaged in criminal conduct 

including the use of marijuana. Because the district court had 

not found that Smith used marijuana and had found only one prior 

violation of the terms of his supervision, the Government 

conceded error, and we remanded for resentencing. United 

States v. Smith, No. 09-4246 (4th Cir. July 9, 2009)

(unpublished order).

On remand, the district court again upwardly departed 

from the advisory guideline range and explained its departure by 

reference to the leniency that it twice afforded Smith and that 

Smith continued to engage in criminal conduct. The court also 

stated that Smith continued to disregard the conditions of his 

supervision and that “no amount or level of supervision [ ] 

could insure the safety of the community from the harms of this 

defendant.” The district court explained that the only criminal 

conduct for which it found a violation of supervision was 
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Smith’s driving after his license was revoked. However, the 

court also relied on the fact that Smith had been in and out of 

prison since age 16, his criminal history — including 

convictions for conspiracy to sell and deliver cocaine and 

resisting a public officer — and the leniency allowed when, 

“[i]n 2007, Smith appeared before this court on two separate 

occasions for revocation hearings.”

On appeal from the thirty-six-month revocation 

sentence, Smith contends that the district court made the same 

error after remand as that which resulted in the remand —

erroneously finding that the court had twice found Smith in 

violation of his supervised release and yet afforded him 

leniency by continuing his supervision.

We will affirm a sentence imposed after revocation of 

supervised release if it is within the applicable statutory 

maximum and is not plainly unreasonable. United States v. 

Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). However, 

only if we conclude that a sentence is procedurally or 

substantively unreasonable will we consider whether the sentence 

is plainly unreasonable. Id. at 439. 

During the revocation proceeding, Smith requested a 

sentence within the advisory guideline range, or at least a 

lesser departure. Because Smith requested a sentence different 

than the one imposed, any error by the district court must 
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result in a reversal unless the error is harmless. See United 

States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010).

On remand, Smith’s counsel repeatedly informed the 

district court that no violation was found during Smith’s second

revocation hearing in 2007. In providing its reasons for 

departing upward to thirty-six months, the district court stated 

that Smith was twice afforded leniency in revocation proceedings 

in 2007. However, the district court’s overall findings in 

support of the upward departure differed after remand from those 

that resulted in the remand. Notably, in the prior ruling, the 

district court found that Smith had committed violations on two 

prior occasions, with one being for use of marijuana. Based on 

that finding and others, the district court departed upward to 

sixty months. Here, with slightly modified findings, but still 

stating that the court twice afforded Smith leniency, the court 

sentenced Smith to thirty-six months. 

In light of the totality of the district court’s 

findings, including Smith’s recidivism, his involvement with 

drugs, his lack of respect for authority, and the fact that he 

received a significant downward departure at his original 

sentence, and the district court’s conclusion that “no amount or 

level of supervision [ ] could insure the safety of the 

community from the harm of [Smith,]” we conclude that any error 

by the court in stating that Smith was twice afforded leniency 
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did not affect the length of his sentence, and therefore was 

harmless. Further, we hold that the thirty-six-month sentence 

imposed upon Smith’s revocation was not clearly unreasonable, 

especially when considered in light of the court’s findings and 

the fact that Smith received a downward departure from the 

guideline range determined for his conviction on the underlying 

offense. See U.S. Sentencing Guidelines Manual § 7B1.4, p.s., 

comment. (n.4) (“When the original sentence was the result of a 

downward departure (e.g., as a reward for substantial 

assistance), . . . an upward departure may be warranted.”). 

Accordingly, we affirm the thirty-six-month sentence 

imposed by the district court. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before the court and argument would not aid the 

decisional process.

AFFIRMED