United States of America v. Antoine Smith

United States Court of Appeals
For the Eighth Circuit
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No. 21-3533
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Antoine Smith
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 26, 2022
Filed: July 13, 2022
[Unpublished]
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Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
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PER CURIAM.
Antoine Smith appeals the sentence imposed by the district court1 after he
pleaded guilty to a firearm offense. On appeal, Smith argues that the district court
1The Honorable Stephen R. Clark, United States District Judge for the Eastern
District of Missouri.

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erred in calculating his Guidelines range and imposed a substantively unreasonable
sentence.
Upon careful review, we conclude the district court did not err in finding that
Smith possessed the firearm in connection with another felony offense, see United
States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (construction and application of
Guidelines are reviewed de novo; factual findings are reviewed for clear error); and
we note that any error in the court’s determination was harmless in any event, as the
court indicated it would have given Smith the same sentence regardless of the
enhancement, see United States v. Shuler, 598 F.3d 444, 447 (8th Cir. 2010)
(procedural errors in determining advisory Guidelines range are subject to harmless
error analysis); United States v. Spikes, 543 F.3d 1021, 1025-26 (8th Cir. 2008)
(where it is clear that sentencing court would have imposed same sentence regardless
of whether appellant’s argument for lower Guidelines range ultimately prevailed,
there can be no reversible error in sentence).
We also conclude that the district court did not impose a substantively
unreasonable sentence, as the court properly considered the factors listed in 18 U.S.C.
§ 3553(a), and did not err in weighing the relevant factors. See United States v.
Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (sentences are reviewed for
substantive reasonableness under deferential abuse of discretion standard; abuse of
discretion occurs when court fails to consider relevant factor, gives significant weight
to improper or irrelevant factor, or commits clear error of judgment in weighing
appropriate factors); see also United States v. Waters, 799 F.3d 964, 975 (8th Cir.
2015) (this court presumes district court adequately considered written and oral
arguments presented by defendant).
Accordingly, we affirm.
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KELLY, Circuit Judge, dissenting.
For the first time on appeal, Smith argues the district court did not find that he
was fleeing police—as opposed to trying to flee—at the time of his arrest. Smith
contends the district court therefore erred by imposing the four-level enhancement
under USSG § 2K2.1(b)(6)(B) for possession of a firearm in connection with another
felony offense.
Under Missouri law, “[w]hen guilt for a felony or misdemeanor is based upon
an attempt to commit that offense, the felony or misdemeanor shall be classified one
step lower than the class provided for the felony or misdemeanor in the statute
creating the offense.” Mo. Rev. Stat. § 562.012.3. Because felony resisting arrest is
a class E felony (the lowest level felony), attempting resisting arrest would be a class
A misdemeanor. See Mo. Rev. Stat. § 575.150. A class A misdemeanor in Missouri
carries a maximum of no more than one year in prison, id. § 558.011(1)(6), and would
not qualify as “another felony offense” under the Guidelines. Without this
enhancement, Smith’s Guidelines range would have been 30 to 37 months’
imprisonment rather than 46 to 57 months’ imprisonment.
It is not clear whether the district court made a factual finding as to whether
Smith fled or merely attempted to flee, and the record does not compel a conclusion
one way or another. Though we review for plain error, United States v. Merritt, 934
F.3d 809, 811 (8th Cir. 2019), resolving Smith’s argument on appeal requires
additional factual development. Given the potential impact on the applicable
Guidelines range, I would remand this case to the district court for factual findings
regarding whether Smith fled or attempted to flee. Cf. United States v. Traylor, 840
F. App’x 894, 895 (8th Cir. 2021) (reviewing motion to suppress for plain error and
remanding for additional factual findings by district court).
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I also note that the 55-month sentence imposed is significantly outside the 30-
to-37-month Guidelines range that would apply without the § 2K2.1(b)(6)(B)
enhancement. In my view, the district court’s conclusory statement that it would
impose the same sentence even if Smith’s objection to the enhancement
prevailed—and thus the applicable Guidelines range was lower—is insufficient to
conclude any possible error is harmless. See Spikes, 543 F.3d at 1025 (“We have
long recognized that ‘if the sentence imposed falls within the guideline range urged
by the appellant and if it is clear that the sentencing court would have imposed the
same sentence regardless of whether the appellant’s argument for a lower guideline
range ultimately prevailed, there can be no reversible error in the sentence.’” (cleaned
up) (emphasis added) (quoting United States v. Harris, 390 F.3d 572, 573 (8th Cir.
2004))); see also Molina-Martinez v. United States, 578 U.S. 189, 198–201 (2016)
(holding that procedural error in calculating the Guidelines range in the “ordinary
case” will satisfy a defendant’s burden of showing prejudice).
Respectfully, I dissent.
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