UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4465

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY CHARLES SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Winston-Salem. Thomas D. 

Schroeder, District Judge. (1:09-cr-00371-TDS-1; 1:10-cr-00302-

TDS-1)

Submitted: January 31, 2012 Decided: February 9, 2012

Before GREGORY, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, Rockingham, North Carolina, for Appellant. 

Ripley Rand, United States Attorney, Paul A. Weinman, Assistant 

United States Attorney, Winston-Salem, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary Charles Smith appeals his conviction for access 

device fraud and one of his convictions for aggravated identity 

theft, and the 222-month sentence imposed by the district court 

following guilty pleas to three counts of bank fraud in 

violation of 18 U.S.C. § 1344(1) (2006), six counts of 

aggravated identity theft in violation of 18 U.S.C. 

§ 1028A(a)(1) (2006), money laundering in violation of 18 U.S.C. 

§ 1956(a)(1) (2006), access device fraud in violation of 18 

U.S.C. § 1029(a)(2) (2006), and social security fraud in 

violation of 42 U.S.C. § 408(a)(6) (2006). On appeal, Smith 

contends that the district court erred by not committing him to 

a suitable facility for mental health treatment in lieu of 

sentencing him to imprisonment, pursuant to 18 U.S.C. § 4244(d) 

(2006). Smith also asserts several challenges to his sentence 

and two of his convictions. We affirm.

Under 18 U.S.C. § 4244(d), a defendant with a mental 

disease or defect may receive a provisional sentence and be 

committed for treatment prior to his final sentencing and 

incarceration. Commitment under § 4244(d) occurs if, after a

hearing on the defendant’s current mental condition, “the court 

finds by a preponderance of the evidence that the defendant is 

presently suffering from a mental disease or defect and that he 

should, in lieu of being sentenced to imprisonment, be committed 
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to a suitable facility for care or treatment.” 18 U.S.C. 

§ 4244(d). In making this determination, the district court is 

required to find both a mental disorder “and that the defendant 

should be hospitalized in lieu of imprisonment.” United 

States v. Buker, 902 F.2d 769, 770 (9th Cir. 1990). A district 

court’s determination as to a defendant’s mental condition is a 

finding of fact that we review for clear error. United 

States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990). We review 

for abuse of discretion a district court’s finding that a 

defendant should not be committed to a mental health facility in 

lieu of imprisonment. See United States v. General, 278 F.3d 

389, 397 (4th Cir. 2002) (reviewing for abuse of discretion a 

district court’s determination concerning a defendant’s 

competency to be sentenced under 18 U.S.C. § 4244).

Having reviewed the record, we conclude that the 

district court did not abuse its discretion in ruling that, 

assuming Smith suffered from a mental disease or defect, 

important governmental interests would not be served by his 

commitment under the statute. See United States v. Jensen, 639 

F.3d 802, 805-06 (8th Cir. 2011). Therefore, this claim 

entitles Smith to no relief. 

Next, Smith asserts several challenges to his 

sentence. We review a sentence for reasonableness, using an 

abuse of discretion standard of review. Gall v. United States, 
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552 U.S. 38, 46, 51 (2007). The first step in this review 

requires us to ensure that the district court committed no 

significant procedural error. United States v. Evans, 526 F.3d 

155, 161 (4th Cir. 2008). Procedural errors include improperly 

calculating the Guidelines range or failing to consider the 

§ 3553(a) factors. United States v. Carter, 564 F.3d 325, 328 

(4th Cir. 2009). In determining whether a district court has 

properly applied a particular Guidelines provision, we review 

its factual findings for clear error and its legal conclusions 

de novo. United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 

2008). 

Smith first challenges the district court’s imposition 

of a two-level increase in his offense level under U.S. 

Sentencing Guidelines Manual (“USSG”) § 2S1.1(b)(3) (2010),

based on its finding that he was engaged in sophisticated money 

laundering. Under USSG § 2S1.1(b)(3), a two-level enhancement 

in the defendant’s offense level is warranted if the defendant 

is convicted of violating 18 U.S.C. § 1956 and the offense 

involved sophisticated money laundering. The commentary to USSG 

§ 2S1.1 defines sophisticated laundering as “complex or 

intricate offense conduct pertaining to the execution or 

concealment of the 18 U.S.C. § 1956 offense,” that “typically 

involves the use of” fictitious entities, shell corporations, or 

layering of transactions. USSG § 2S1.1, cmt. n.5(A). After 
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reviewing the record, we conclude that the district court did 

not err in finding that Smith was engaged in sophisticated money 

laundering, warranting the two-level increase. 

Smith next contends that the district court erred in 

imposing the two-level vulnerable victim enhancement under USSG 

§ 3A1.1(b)(1), because there was no evidence to show that he 

actually knew that his victims, incarcerated inmates, were 

unusually vulnerable. The increase is warranted “[i]f the 

defendant knew or should have known that the victim of the 

offense was a vulnerable victim.” USSG § 3A1.1(b)(1). In 

making this determination, the district court must find that a 

victim was unusually vulnerable, and assess whether the 

defendant knew or should have known of such vulnerability. 

United States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010). 

After reviewing the record, we conclude that the district court 

did not err in imposing this enhancement. 

Next, Smith challenges the district court’s imposition

of six consecutive twenty-four-month sentences for his multiple 

§ 1028A convictions. Smith argues that his underlying fraud 

offenses were grouped under USSG § 3D1.2, and the district court 

procedurally erred by failing to explain its reasons for 

imposing six consecutive sentences for his multiple § 1028A 

convictions when the Guidelines recommended that these sentence 

run concurrently.
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Under 18 U.S.C. § 1028A, if a defendant wrongfully 

uses the identity of another person during and in relation to a 

bank or social security fraud, a sentencing court is required to 

impose a twenty-four-month sentence consecutive to the sentence 

imposed for the underlying fraud. See 18 U.S.C. § 1028A(a)(1), 

(b)(2). In cases where a defendant has been convicted of 

multiple counts under 18 U.S.C. § 1028A(a)(1), a court, in its 

discretion, can run each of the twenty-four-month sentences 

concurrently with one another, in whole or in part. 18 U.S.C. 

§ 1028A(b)(4). In exercising its discretion to impose 

consecutive or concurrent sentences for multiple convictions 

under § 1028A, the court must consider a non-exhaustive list of 

factors that includes the nature and gravity of the underlying 

offenses, whether those offenses are groupable under USSG 

§ 3D1.2, and whether the purposes of sentencing set forth in 18 

U.S.C. § 3553(a)(2) are better achieved with consecutive or 

concurrent sentences. See USSG § 5G1.2 cmt. n.2(B). The 

sentencing court must adequately explain its decision to impose 

consecutive sentences pursuant to § 1028A. See United States v. 

Dvorak, 617 F.3d 1017, 1029 (8th Cir. 2010). 

After reviewing the record, we find that the district 

court properly noted that Smith’s underlying fraud offenses were 

grouped under USSG § 3D1.2, but in a proper exercise of its 

discretion, found that the purposes of sentencing set forth in 
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18 U.S.C. § 3553(a)(2) were better achieved by imposing 

consecutive sentences. We conclude that the district court 

thoroughly considered those factors in making its determination, 

and the resulting sentence is not substantively unreasonable. 

Smith claims that the district court plainly erred in 

failing to dismiss, on its own motion, one of the counts of 

access device fraud and one count of aggravated identity theft 

to which he pled guilty because the evidence offered at 

sentencing showed that the Government could not prove the 

elements of the crimes. We note that, in making this argument, 

Smith does not challenge the voluntariness of his guilty plea. 

“When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to 

entry of the plea.” United States v. Moussaoui, 591 F.3d 263, 

279 (4th Cir. 2010) (internal quotation marks omitted). We find 

that because Smith’s guilty plea to the crimes was both 

counseled and voluntary, he cannot now challenge his conviction

based on his contention that the evidence at sentencing failed 

to prove the elements of those crimes. Thus, we conclude that 

Smith is not entitled to relief. 

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED