2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-5-2014

USA v. Thurman Smith

Precedential or Non-Precedential: Non-Precedential

Docket 13-2568

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Recommended Citation

"USA v. Thurman Smith" (2014). 2014 Decisions. Paper 147.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-2568

_____________

UNITED STATES OF AMERICA

v.

THURMAN H. SMITH, 

 Appellant

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Crim. No. 10-cr-00546-001)

District Judge: Honorable Jerome B. Simandle

____________

Submitted Under Third Circuit LAR 34.1(a)

January 17, 2014

____________

Before: RENDELL, ROTH and BARRY, Circuit Judges

(Opinion Filed: February 5, 2014 )

____________

OPINION

____________

BARRY, Circuit Judge

Thurman H. Smith appeals the judgment of the District Court sentencing him to 18 

months’ imprisonment for violation of his supervised release. Smith contends that the 

Court procedurally erred in arriving at this sentence and that the sentence itself is 
2

substantively unreasonable. We find his arguments unavailing, and will affirm.

I.

On August 11, 2009, Smith entered a plea of guilty in the Middle District of 

Pennsylvania to one count of distribution and possession with the intent to distribute 

cocaine base within 1,000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1) 

and 860(a). On December 21, 2009, he was sentenced to time served (26 months and 19 

days in prison) and six years of supervised release with various conditions. He began his 

term of supervision in the Middle District, but, on August 17, 2010, the District of New 

Jersey assumed jurisdiction.

In October 2010, the Probation Office filed a petition charging that Smith had 

violated five conditions of his release: (1) failing to notify his probation officer of a 

change of residence; (2) failing to report for drug testing and testing positive for 

marijuana use; (3) failing to obtain employment; (4) failing to report for scheduled 

meetings with his probation officer; and (5) committing another crime while under 

supervision, as he was arrested by local police in New Jersey for obstruction of law 

enforcement activities. On October 12, 2010, Smith appeared before the District Court 

for the District of New Jersey and pled guilty to the first two violations. The Court 

sentenced him to seven months’ imprisonment to be followed by a four-year term of 

supervised release, again subject to special conditions, including a requirement that he

refrain from drug use. Smith was released from prison and began serving his new term of 

supervised release on April 28, 2011.
3

Less than a week later, Smith tested positive for and admitted to using the drug 

PCP. Based on the recommendation of his probation officer, the District Court did not 

find him in violation of the conditions of his release and instead ordered that he submit to 

increased drug testing and participation in counseling and drug treatment as necessary. 

He thereafter participated in drug treatment without issue and submitted negative urine 

samples. He remained unemployed for the duration of his period of supervised release, 

however, and, although he began working toward a GED, he did not complete the 

program.

On November 11, 2011, while still under federal supervision, Smith committed 

two unrelated acts of aggravated assault in Lindenwold, New Jersey, again violating his 

conditions of release. In the first incident, Smith and two others attacked a man who was 

walking near an apartment complex, punching him repeatedly in the face and head. The 

victim sought treatment for his eye at a New Jersey hospital and was eventually 

transferred to the Wills Eye Hospital in Philadelphia due to the severity of his injury. 

Also that day, Smith, armed with a pair of scissors, and another male punched and robbed 

two individuals outside of a local convenience store. Smith was arrested by local police 

shortly thereafter and taken into custody. He pled guilty to two counts of aggravated 

assault in Camden County Superior Court on April 16, 2013.

On May 21, 2013, Smith appeared before the District Court and pled guilty to a 

single Grade A violation of his supervised release based on his commission of the two 

Lindenwold assaults. At the colloquy, the Court asked Smith whether he had committed 
4

two crimes in Lindenwold, New Jersey and whether he had pled guilty to two counts of 

aggravated assault in Camden County Superior Court. Smith answered “[y]es” to each 

question. (App. at 38-39.)

The District Court accepted Smith’s guilty plea and turned directly to the matter of 

sentencing. Based on the nature of Smith’s supervised release violation and his criminal 

history category, he faced a maximum statutory sentence of 36 months’ imprisonment, 18 

U.S.C. § 3583(e)(3), and an advisory Guidelines range of 15 to 21 months in prison, 

U.S.S.G. § 7B1.4(a).

Smith, through counsel, acknowledged that “in November of 2011 he made some 

very poor choices . . . and got involved in some fights,” but argued that his original 

conviction was for a low-level drug offense, more like those prosecuted in state, rather 

than federal, court. (App. at 40-41.) Counsel noted that Smith had already served a 

significant amount of time for that offense and, accordingly, requested imposition of a 

prison sentence at or near the bottom of the Guidelines range. Counsel also asked the 

District Court to refrain from requiring an additional term of supervised release. The 

government, for its part, requested a sentence near the low end of the Guidelines range, as 

well as a term of supervised release. Smith was offered the opportunity to speak on his 

own behalf, but declined. When asked what he would like to say, Smith stated, 

“[n]othing.” (App. at 46.)

The District Court ultimately imposed a middle-of-the-Guidelines range sentence 

of 18 months to be followed by an additional term of supervised release for two years. 
5

The Court observed that this was the second time Smith was before it on a violation of 

supervised release, and that the present violation, two aggravated assaults of random 

individuals, was “not just some technical violation[].” (App. at 49-51.) Noting that “one 

of the reasons for a sentence is to promote respect for the law,” the Court opined that a 

second violation within months of release from prison indicates that a releasee is “not 

taking federal supervision very seriously” and that the Court’s prior seven-month 

sentence obviously had not deterred Smith from breaking the law. (App. at 51.) In the

Court’s estimation, Smith’s violation warranted a punishment “above and beyond 

whatever the punishment is for the underlying crime.” (App. at 51.) The Court further 

concluded that additional imprisonment was necessary to protect the community and, 

along with supervised release, would hopefully impel Smith to find a job, earn his GED, 

and become a productive member of society. The Court credited Smith for admitting his 

responsibility for the assaults by pleading guilty to them, but found that “Mr. Smith has 

nothing to say and hasn’t said that he’s sorry and just seems to be rather unremorseful.” 

(App. at 52.) Smith timely appealed.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(e)(3). 

We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.

We review a judgment of sentence, including a sentence for violation of 

supervised release, first for procedural and then substantive reasonableness. United 

States v. Young, 634 F.3d 233, 237 (3d Cir. 2011); United States v. Tomko, 562 F.3d 558, 
6

564-67 (3d Cir. 2009) (en banc). Where a defendant raises a claim of procedural error for 

the first time on appeal, we review for plain error. United States v. Berger, 689 F.3d 297, 

299 (3d Cir. 2012). This is the standard even if the claim is predicated on a constitutional 

violation. United States v. Lopez, 650 F.3d 952, 959 (3d Cir. 2011). To satisfy plain

error, a defendant must demonstrate that (1) there is an error; (2) the error is clear or 

obvious; (3) the error affected the defendant’s substantial rights; and (4) the error 

seriously impacts the “fairness, integrity or public reputation of judicial proceedings.” 

United States v. Marcus, 560 U.S. 258, 262 (2010) (quoting Puckett v. United States, 556 

U.S. 129, 135 (2009)). Even when that standard is met, we need not correct the error 

unless it would be a “miscarriage of justice” not to do so. United States v. Tyson, 653 

F.3d 192, 211 (3d Cir. 2011) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

When assessing the substantive reasonableness of a sentence, we apply the 

deferential abuse of discretion standard of review. Tomko, 562 F.3d at 564. “Absent 

procedural error, we will affirm the sentencing court ‘unless no reasonable sentencing 

court would have imposed the same sentence on that particular defendant for the reasons 

the district court provided.’” United States v. Doe, 617 F.3d 766, 770 (3d Cir. 2010)

(quoting Tomko, 562 F.3d at 568).

III.

Smith objects to his sentence as both procedurally and substantively unreasonable. 

First, he contends that the District Court violated his Fifth Amendment right against 

compulsory self-incrimination by imposing an 18-month sentence as punishment for his 
7

exercise of this constitutional right, through his silence, at the revocation hearing.1 

Because he did not raise this claim before the Court, we review for plain error. Berger, 

689 F.3d at 299. Second, Smith argues that the sentence imposed was unreasonably 

excessive.

Smith has failed to establish a procedural defect, much less one that is plainly 

erroneous. The Fifth Amendment provides that no person “shall be compelled in any 

criminal case to be a witness against himself.” U.S. Const. amend. V (emphasis added). 

In claiming that the District Court violated this right by considering his silence at 

sentencing, Smith relies on Mitchell v. United States, 526 U.S. 314, 326-30 (1999), which 

held that a court may not draw any adverse inference from a defendant’s refusal to testify 

at sentencing when making factual determinations relating to “the circumstances and 

details of the crime” at issue. He cites no authority, however, extending Mitchell’s noadverse-inference rule to a hearing on a revocation of supervised release; indeed, there is 

reason to doubt that the rule is to be so applied. A revocation hearing “is not a criminal 

proceeding,” and a probationer is not entitled to the privilege against compelled selfincrimination when his testimony would be used solely to determine the propriety of 

 

1 Although, in his briefing, Smith asserts that the sentencing procedure “ran afoul 

of his Fifth Amendment right against self-incrimination,” he goes on to argue that his 

claim somehow does not implicate that right and is instead based on what he perceives to 

be a different violation, the deprivation of a “constitutionally-sound revocation process 

. . . free of coercion.” Appellant’s Br. at 13. But Smith was not coerced to say or do 

anything at his revocation hearing, and the gist of his claim is that the District Court 

imposed a harsher than requested sentence because he chose to remain silent at 

sentencing. We, therefore, understand Smith to allege that the Court violated his Fifth 

Amendment right to remain silent by penalizing him for its invocation.
8

rescinding his release. Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984). It, therefore, 

was not plain or obvious that Smith’s decision not to speak at his revocation hearing was 

protected by the Fifth Amendment, at least where, as here, his testimony “posed no 

realistic threat of incrimination in a separate criminal proceeding.” Id.

That last point is important. It is accepted that, “as a general rule, . . . where there 

can be no further incrimination, there is no basis for the assertion of the privilege.” 

Mitchell, 526 U.S. at 326. Smith had already pled guilty to the two assaults that formed 

the basis of his supervised release violation, and, at the hearing before the District Court, 

confirmed that he had committed those assaults and had entered a guilty plea in his New 

Jersey criminal proceeding.

Furthermore, Smith did not inform the District Court that his decision to remain 

silent at the revocation hearing was based on an assertion of his rights under the Fifth 

Amendment. As the Supreme Court has noted, “[t]he Fifth Amendment privilege against 

compelled self-incrimination is not self-executing.” Roberts v. United States, 445 U.S. 

552, 559 (1980). Where there is “no substantial reason to believe that the requested 

disclosures are likely to be incriminating, the privilege may not be relied upon unless it is 

invoked in a timely fashion” and “at a time when the sentencing court could have 

determined whether [the privilege] claim was legitimate.” Id. at 559-60. Smith’s 

response to the District Court that he had nothing to say on his own behalf was not an 

obvious assertion of the privilege and could have been—and, indeed, was—construed as 

a lack of remorse. United States v. Keskes, 703 F.3d 1078, 1090-91 (7th Cir. 2013) 
9

(assessing an identical Fifth Amendment claim); see also United States v. Martorano, 

866 F.2d 62, 70 n.8 (3d Cir. 1989).

A releasee’s lack of remorse is an appropriate factor for a court to assess when 

fashioning a sentence. See 18 U.S.C. § 3661 (“No limitation shall be placed on the 

information concerning the background, character, and conduct of a person convicted of 

an offense which a court of the United States may receive and consider for the purpose of 

imposing an appropriate sentence.”); United States v. King, 454 F.3d 187, 195 (3d Cir. 

2006) (identifying lack of remorse as an appropriate sentencing consideration). The 

Mitchell Court expressed no opinion as to whether a sentencing court may infer a lack of 

remorse from a defendant’s silence, 526 U.S. at 330, and Smith cites no binding authority 

holding that a sentencing court is barred from doing so where, as here, there is no reason 

to believe that unexpressed remorse could be used for an additional incriminatory 

purpose.

2

 Any error in that regard was surely not “plain.”

In any event, the District Court’s sentence of 18 months in prison was wellsupported. In settling on this sentence, the Court considered the factors relevant to 

sentencing under 18 U.S.C. § 3583(e). It acknowledged that Smith’s imprisonment 

would cause hardship for his family and that he had accepted responsibility for the 

 

2

In United States v. Heubel, 864 F.2d 1104 (3d Cir. 1989), a case that Smith cites, 

the defendant invoked his Fifth Amendment right to silence at sentencing to avoid 

answering questions that may have left him open to subsequent prosecution for 

conspiracy, a crime with which he had not yet been charged. United States v. Mitchell, 

122 F.3d 185, 189 (3d Cir. 1997) (discussing Heubel), rev’d on other grounds, 526 U.S. 

314. The defendant in Heubel also expressly asserted, through counsel, his Fifth 

Amendment right to remain silent. 864 F.2d at 1106, 1111.
10

assaults by pleading guilty. However, the Court also found that a substantial term of 

imprisonment, given the violent nature of the assaults and that this was Smith’s second 

violation of federal supervision, was necessary to protect the community and to deter him 

from future wrongdoing by driving home the point that he needed to take his supervision 

seriously. The Court concluded that further confinement and supervised release would 

hopefully be the impetus for him to secure employment and a GED. Finally, the Court 

found a lack of contrition not only from Smith’s recalcitrance at the hearing but also from 

his failure to apologize for his conduct and the fact that he generally seemed 

unremorseful. Accordingly, any constitutional error did not seriously impact the 

“fairness, integrity or public reputation of [Smith’s] judicial proceedings,” Marcus, 560 

U.S. at 262, and no miscarriage of justice would flow from our refusal to vacate the 

sentence, Tyson, 653 F.3d at 211.

It follows that the sentence imposed was not substantively unreasonable. The 18-

month sentence was not so long or burdensome that “no reasonable sentencing court 

would have imposed the same sentence on [him] for the reasons . . . provided” by the 

District Court. Tomko, 562 F.3d at 568.

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.