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United States v. Smith

United States Court of Appeals, Tenth Circuit

July 6, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JACOB L. SMITH, Defendant-Appellant.

          (D.C. No. 2:16-CR-20022-JAR-1) (D. Kan.)

          Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.

         ORDER

         This matter is before the court on the appellant's Petition for Rehearing En Banc. Upon consideration, panel rehearing is granted in part and for the limited purpose of adding a new citation to the decision. Panel rehearing is otherwise denied. A copy of the revised and amended Order & Judgment is attached to this order and shall be filed effective today's date.

         The Petition was also circulated to all of the judges of the court who are in regular active service. As no judge on the panel or the en banc court requested that a poll be called, the request for en banc reconsideration is denied.

          ORDER AND JUDGMENT [*]

          CARLOS F. LUCERO CIRCUIT JUDGE

         Jacob Smith appeals following his convictions for bank robbery and discharging a firearm during and in relation to a crime of violence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I

         Smith pled guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). Smith's Presentence Investigation Report recommended a Guidelines range of 97 to 121 months for the first count to run consecutively with the mandatory 120 months for the second count. The government sought an upward variance of six offense levels and an upward departure of four additional levels. The defense sought a sentence on the lower end of the initial Guidelines range.

         The district court granted the government's motion in part, upwardly varying and departing to impose a sentence of 180 months on the first count and 120 on the second. Smith now appeals.

         II

         Smith challenges his conviction under § 924(c)(1)(A), arguing that his bank robbery conviction does not qualify as a crime of violence. Since the initiation of Smith's appeal, we have held that bank robbery does so qualify under the elements clause of U.S.S.G. § 4B1.2(a)(1). United States v. McCranie, 889 F.3d 677, 679-81 (10th Cir. 2018). Because the elements clause of § 924 is identical to that contained in the Guidelines, compare U.S.S.G. § 4B1.2(a)(1), with § 924(c)(3)(A), we reach the same conclusion.

         III

         Smith also argues that the district court failed to adequately explain its sentencing decision. The government contends that because Smith failed to object below, we should review only for plain error. See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Smith counters that the district court did not give his counsel an opportunity to object. However, the district court did ask for objections after tentatively announcing its sentencing decision. Further, attorneys are generally expected to object even if a court does not explicitly ask them if they would like to. United States v. Craig, 794 F.3d 1234, 1238 (10th Cir. 2015) ("It is a lawyer's job to object-by way of interruption, if the circumstances warrant-when the court is in the midst of committing an error."), overruled on other grounds in United States v. Bustamonte-Conchas, 850 F.3d 1130 (10th Cir. 2017). We thus review this issue for plain error. Smith "must demonstrate that there is (1) an ...


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