No. 2:16-CR-20022-JAR-1) (D. Kan.)
LUCERO, BALDOCK, and HARTZ, Circuit Judges.
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.
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 [*]
F. LUCERO CIRCUIT JUDGE
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.
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.
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
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.
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)