Professional Documents
Culture Documents
No. 11-4465
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-00302TDS-1)
Submitted:
Decided:
February 9, 2012
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
violation
of
U.S.C.
aggravated
18
identity
to
three
counts
1344(1)
theft
in
of
(2006),
violation
bank
six
of
fraud
in
counts
of
18
U.S.C.
1956(a)(1)
U.S.C.
(2006),
1029(a)(2)
access
device
(2006),
and
fraud
in
social
violation
security
of
fraud
18
in
On appeal, Smith
suitable
facility
for
mental
health
treatment
in
lieu
of
We affirm.
or
committed
defect
for
incarceration.
may
receive
treatment
prior
provisional
to
his
final
sentence
and
sentencing
be
and
to
suitable
4244(d).
facility
for
care
or
treatment.
18
U.S.C.
be
hospitalized
in
lieu
of
imprisonment.
United
A district
of
fact
that
we
review
for
clear
error.
abuse
of
discretion
district
courts
United
We review
finding
that
courts
determination
concerning
defendants
court
assuming
Smith
important
reviewed
did
not
record,
abuse
suffered
governmental
the
its
from
interests
we
conclude
discretion
mental
would
in
disease
not
be
that
ruling
or
the
that,
defect,
served
by
his
F.3d
2011).
802,
805-06
(8th
Cir.
Therefore,
this
claim
Smith
asserts
several
challenges
to
his
us
to
ensure
that
the
the
Guidelines
3553(a) factors.
(4th Cir. 2009).
court
committed
no
or
failing
to
consider
the
2008).
Smith first challenges the district courts imposition
of
two-level
Sentencing
increase
Guidelines
in
Manual
his
offense
(USSG)
level
under
2S1.1(b)(3)
U.S.
(2010),
convicted
of
violating
18
U.S.C.
2S1.1
intricate
defines
sophisticated
offense
conduct
1956
the
offense
laundering
pertaining
and
to
as
the
complex
or
execution
or
After
knew
that
his
unusually
vulnerable.
defendant
knew
offense
was
or
victims,
The
should
vulnerable
incarcerated
increase
have
is
known
victim.
inmates,
warranted
that
USSG
the
were
[i]f
victim
of
3A1.1(b)(1).
the
the
In
was
defendant
unusually
knew
or
vulnerable,
should
have
and
known
assess
of
such
whether
the
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 courts imposition
of six consecutive twenty-four-month sentences for his multiple
1028A convictions.
offenses were grouped under USSG 3D1.2, and the district court
procedurally
erred
imposing
consecutive
six
by
failing
to
sentences
explain
for
his
its
reasons
multiple
for
1028A
In
cases
where
defendant
has
been
convicted
of
can
run
each
of
the
twenty-four-month
or
In
exercising
concurrent
its
sentences
discretion
for
multiple
sentences
18 U.S.C.
to
impose
convictions
whether
those
offenses
are
groupable
under
USSG
concurrent
3553(a)(2)
sentences.
are
better
See
USSG
achieved
5G1.2
with
cmt.
consecutive
n.2(B).
or
The
18
U.S.C.
3553(a)(2)
consecutive
sentences.
were
We
better
conclude
achieved
that
the
by
imposing
district
court
which
he
sentencing
pled
guilty
showed
that
because
the
the
Government
evidence
could
offered
not
at
prove
the
defects
in
the
proceedings
conducted
prior
because
to
Smiths
guilty
plea
to
the
crimes
We find
was
both
dispense
with
oral
argument
because
the
facts
and
legal