2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2011

USA v. Marcus Smith

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1800

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Recommended Citation

"USA v. Marcus Smith" (2011). 2011 Decisions. Paper 1587.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-1800

_____________

UNITED STATES OF AMERICA

v.

MARCUS SMITH,

Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 04-CR-651-002

District Judge: The Honorable Stewart Dalzell

_____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 24, 2011

Before: FUENTES, SMITH, and GREENBERG, Circuit Judges

(Filed: March 25, 2011)

_____________________

OPINION

_____________________

SMITH, Circuit Judge.

Marcus Smith was convicted of several criminal offenses arising out of an armed 

robbery. He was sentenced to 50 months of imprisonment, the result of a generous 

variance from a sentencing guideline range of 150 to 157 months. He was also given a

five year term of supervised release. Shortly after his release from prison, Smith violated 
2

the terms of his supervised release. That violation led to an eight month term of

imprisonment imposed in September of 2007. He was released from prison for the 

second time in May of 2008. In mid-August of 2008, Smith’s probation officer filed a 

second petition for revocation of his supervised release.

1

The second petition set forth 

the pertinent details of Smith’s violations and identified the applicable sentencing 

guideline range. At the revocation hearing in March of 2010, Smith did not dispute the 

allegations in the second petition. Smith’s guideline sentencing range was only 5 to 11 

months of imprisonment. The statutory maximum period of imprisonment upon 

revocation, however, was 52 months. The District Court imposed a sentence of 22 

months imprisonment, to be followed by a 30 month term of supervised release. During 

the sentencing proceeding, the Court recounted Smith’s checkered record on supervision 

and emphasized that it amounted to a “flagrant violation for the second time of your

supervised release . . . that needs to be punished to vindicate the authority of the Court.” 

The Court further noted that he could impose a longer period of incarceration, but that he

was persuaded by defense counsel to give Smith “one last chance.”

Smith appealed, contending that the District Court’s sentence was procedurally

unreasonable because the Court failed to calculate the applicable sentencing guideline 

range and to consider the factors set forth in 18 U.S.C. § 3553(a).2 In United States v. 

 

1

 The second revocation petition cited several violations, including positive drug tests, a 

failure to report to his probation officer, and a failure to attend group counseling sessions. 

It also noted that Smith had absconded from the authorities. 

2

 The District Court exercised jurisdiction under 18 U.S.C. §§ 3231 and 3583(e)(3). We 

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3

Bungar, 478 F.3d 540 (3d Cir. 2007), we concluded that a sentence imposed upon 

revocation of supervised release is subject to review, consistent with United States v. 

Booker, for reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a). Id. at 

542 (citing United States v. Booker, 543 U.S. 220, 261-62 (2005)). After reviewing the 

record before us, including the thoughtful comments of Judge Dalzell during the March 

11, 2010 revocation hearing, we conclude that Smith’s argument lacks merit. The 

District Court was aware of the applicable sentencing guideline range, fully considered 

the § 3553(a) factors, and explained the reasons for its above-guidelines sentence. We 

will affirm the order of the District Court.