United States of America v. Eric Dean Smith, a/k/a Big E

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4491
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC DEAN SMITH, a/k/a Big E,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, Chief District
Judge. (3:14-cr-00736-TLW-1)
Submitted: June 28, 2016 Decided: June 30, 2016
Before SHEDD, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven M. Hisker, HISKER LAW FIRM, PC, Duncan, South Carolina,
for Appellant. Jane Barrett Taylor, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eric Dean Smith pled guilty pursuant to a plea agreement to
conspiracy to knowingly, intentionally, and unlawfully possess
with intent to distribute and to distribute 5 kilograms or more
of powder cocaine and 280 grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2012), and
knowingly possessing an animal in interstate commerce for an
animal fighting venture, in violation of 7 U.S.C. § 2156(b)
(2012), 18 U.S.C. §§ 2, 49 (2012). Smith was sentenced to 360
months’ imprisonment for the drug conspiracy and a concurrent 60
months’ imprisonment for the animal fighting venture. His
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious issues for
appeal, but raising for the court’s consideration whether the
sentence was reasonable. Smith filed a pro se supplemental
brief challenging the Sentencing Guidelines enhancement for his
role in the offense and the career offender designation. The
Government did not file a brief. After a careful review of the
record, we affirm.
We review a sentence’s procedural and substantive
reasonableness for an abuse of discretion. United States v.
Howard, 773 F.3d 519, 527-28 (4th Cir. 2014). We first review
for procedural errors such as improper calculation of the
Guidelines range, failure to consider the 18 U.S.C. § 3553(a)

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(2012) sentencing factors, selection of a sentence based on
clearly erroneous facts, or failure to adequately explain the
sentence, Gall v. United States, 552 U.S. 38, 51 (2007). Absent
any procedural error, we examine the substantive reasonableness
of the sentence under “the totality of the circumstances.” Id.
Sentences within or below a properly calculated Guidelines range
are presumed substantively reasonable, and this “presumption can
only be rebutted by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.” United
States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Because Smith withdrew his objections to the presentence
report, he has waived review of those issues. United States v.
Robinson, 744 F.3d 293, 298 (4th Cir. 2014) (“[W]hen a claim is
waived, it is not reviewable on appeal, even for plain error.”).
Insofar as Smith may have forfeited review of an alleged error
by failing to raise a timely objection, we review for plain
error. Id.; United States v. Hamilton, 701 F.3d 404, 410 (4th
Cir. 2012). To establish plain error, Smith must show:
(1) error; (2) that was plain; and (3) that affected his
substantial rights. Henderson v. United States, 133 S. Ct.
1121, 1126-27 (2013). If all three conditions are met, we will
exercise our discretion to notice the error, but only if the
error seriously affects the fairness, integrity, or public

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reputation of the judicial proceedings. Johnson v. United
States, 520 U.S. 461, 467 (1997).
We conclude there was no plain error with the drug quantity
attributed to Smith or the finding that he is a career offender
under U.S. Sentencing Guidelines Manual § 4B1.1(b) (2014).
Because Smith requested a below-Guidelines sentence, we review
the within-Guidelines sentence for abuse of discretion. See
United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010)
(stating standard of review). We conclude that the district
court’s within-Guidelines sentence is both procedurally and
substantively reasonable and not an abuse of discretion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Smith’s convictions and sentence.
This court requires that counsel inform Smith, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Smith requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Smith. We dispense with oral argument because the
facts and legal contentions are adequately presented in the

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materials before this court and argument would not aid the
decisional process.
AFFIRMED

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