United States of America v. D E Andre Smith

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1447
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
D E A NDRE SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 20-cr-20051 — Michael M. Mihm, Judge.
____________________
A RGUED NOVEMBER 28, 2022 — DECIDED D ECEMBER 8, 2022
____________________
Before R OVNER , ST . EVE , and KIRSCH, Circuit Judges.
ST . EVE , Circuit Judge. DeAndre Smith appeals his sentence
of 120 months’ imprisonment for five narcotics and firearms
convictions. For the reasons stated below, we affirm.
I. Background
This appeal arises out of a Vermilion County Metropolitan
Enforcement Group (“VMEG”) investigation into drug deal-
ing in Danville, Illinois. On November 7, 2018, a confidential

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2 No. 22-1447
source working with VMEG purchased 3.1 grams of metham-
phetamine from Smith. On July 15, 2019, an undercover
VMEG agent purchased 0.7 grams of fentanyl and heroin
from Smith. On February 3, 2020, VMEG agents arrested
Smith on an outstanding warrant. On his person, the agents
found a loaded semiautomatic handgun equipped with a 16-
round magazine containing 11 live bullets, plus a bullet in the
chamber; 23 foil packages collectively containing 3.1 grams of
fentanyl and heroin; several hundred dollars in cash; and a
digital scale bearing fentanyl residue.
Federal prosecutors took charge of the case and indicted
Smith on five counts. Counts 1, 2, and 3 were narcotics of-
fenses. They charged Smith with violations of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) based, respectively, on the 2018
confidential-source purchase, the 2019 undercover purchase,
and the drugs recovered during Smith’s 2020 arrest. Counts 4
and 5 charged Smith with firearms offenses based on his pos-
session of a firearm on February 3, 2020. Count 4 charged him
with carrying a firearm during and in relation to a drug-traf-
ficking crime—Count 3’s offense conduct—in violation of 18
U.S.C. § 924(c). Count 5 charged Smith with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Smith pleaded guilty to Counts 1, 2, 3, and 5, and he was con-
victed in a jury trial on Count 4.
The presentence investigation report (“PSR”) grouped
Counts 1, 2, 3, and 5 together. The base offense level on these
counts was 22 because Smith’s semiautomatic firearm was
“capable of accepting a large capacity magazine,” U.S.S.G.
§ 2K2.1(a)(3), and a one-level multiple-count enhancement
applied, for a total offense level of 23. The district court
awarded Smith one point for acceptance of responsibility,

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No. 22-1447 3
reducing his offense level to 22. Smith’s substantial criminal
history placed him in the highest criminal history category.
The advisory Sentencing Guidelines range on the grouped
counts was 84–105 months, and the § 924(c) conviction carried
a mandatory minimum sentence of 60 months, to be served
consecutively, for an effective Guidelines range of 144–165
months.
At sentencing, the government requested a sentence of 152
months: 92 months on the grouped counts and 60 months on
the § 924(c) conviction. The government emphasized that
Danville is a dangerous city due to crimes like Smith’s and
argued that Smith deserved a substantial sentence because of
his long criminal history. Smith argued that a total sentence
of 84 months was appropriate and noted that under Dean v.
United States, 137 S. Ct. 1170 (2017), the court could take the
mandatory consecutive sentence on the § 924(c) conviction
into account when imposing the sentence on the grouped
counts. Smith requested a sentence of 24 months on the
grouped counts, plus 60 months on the § 924(c) conviction. He
raised several arguments in mitigation, including that he had
possessed small quantities of drugs, that his criminal history
was nonviolent, and that he only carried a gun for protection.
The district court adopted the facts found in the PSR, not-
ing that although Smith dealt in small quantities of drugs, fen-
tanyl was especially dangerous, and the court was troubled
by the fact that Smith carried a gun, which “made his presence
there at that time a very dangerous event.” The court never-
theless determined that the 18 U.S.C. § 3553(a) factors made a
downward variance appropriate, and it sentenced Smith to 60
months on each of the grouped counts, to run concurrently,

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4 No. 22-1447
and 60 months on the § 924(c) conviction, to run consecu-
tively, for a total of 120 months. Smith appealed.
II. Discussion
When a defendant appeals his sentence, we first review
the district court’s procedures de novo. United States v. Gates,
51 F.4th 271, 273 (7th Cir. 2022). The court must “(1) correctly
calculate the applicable guidelines range; (2) give meaningful
consideration to the § 3553(a) factors and any nonroutine sen-
tencing arguments raised by the defense; and (3) state the fac-
tors on which the sentence is based.” Id. (quoting United States
v. Swank, 37 F.4th 1331, 1334 (7th Cir. 2022)). If procedurally
sound, we review the sentence’s substantive reasonableness
for abuse of discretion. Id.
Smith purports to raise both procedural and substantive
challenges to his sentence, but his only real arguments are
procedural. His substantive arguments merely recast the pro-
cedural errors he identifies as abuses of discretion. Such cur-
sory arguments cannot overcome the “nearly irrebuttable pre-
sumption that a below-range sentence is reasonable.” United
States v. Miller, 829 F.3d 519, 527 (7th Cir. 2016) (citation omit-
ted). Thus, Smith’s appeal rises and falls with his procedural
arguments, which we consider in turn.
A. Sentencing Guidelines Application
Smith argues that the district court erred by applying the
guideline for carrying a firearm compatible with a large ca-
pacity magazine, U.S.S.G. § 2K2.1(a)(3), because he did not
modify the firearm. Smith argues that he “should not be pe-
nalized because the firearm itself had been manufactured” to
carry such a magazine—it came from the manufacturer “in
violation of this guideline.”

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No. 22-1447 5
This argument is meritless. The guideline applies to an of-
fense involving a “semiautomatic firearm that is capable of
accepting a large capacity magazine,” which is defined in part
as a firearm that “had attached to it a magazine or similar de-
vice that could accept more than 15 rounds of ammunition.”
§ 2K2.1(a)(3)(A)(i) & comment. (n.2). The plain text of the
guideline does not require that the defendant modified the
firearm—it applies regardless of whether the defendant in-
tended to carry a firearm with a large capacity magazine or
modified his firearm. The fact that Smith’s weapon could ac-
cept a 16-round magazine means that § 2K2.1(a)(3) applies.
Moreover, Smith is mistaken that his weapon was manufac-
tured in violation of this provision—his choice to carry it
while committing a narcotics crime triggered the guideline.
B. Dean v. United States
Next, Smith contends that the district court erred by fail-
ing to consider whether his total sentence—the discretionary
sentence on the grouped counts, plus the mandatory mini-
mum on the § 924(c) conviction—was appropriate under the
18 U.S.C. § 3553(a) sentencing factors. He relies on Dean v.
United States, which held that a district court may consider the
fact that a defendant will receive a mandatory consecutive
§ 924(c) sentence when determining an appropriate sentence
on other counts. 137 S. Ct. at 1178. In Smith’s view, Dean re-
quires a district court to make an express finding that the total
sentence is appropriate anytime it sentences a defendant con-
victed of a § 924(c) violation.
Smith misreads Dean. The question presented in Dean was
whether “a judge must ignore the fact that the defendant will
serve the mandatory minimums imposed under § 924(c)”
when sentencing him on other counts of conviction. Id. at 1174

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6 No. 22-1447
(emphasis added). The Court answered in the negative. It ex-
plained that 18 U.S.C. § 3553(a) “specifies the factors courts
are to consider in imposing a sentence” and that ordinarily a
judge “imposing a sentence on one count of conviction [may]
consider sentences imposed on other counts.” Id. at 1175–76.
The Court then analyzed the language of § 924(c), which
“simply requires any mandatory minimum … to be imposed
‘in addition to’ the sentence for [any other] offense, and to run
consecutively to that sentence.” Id. at 1178. “Nothing,” the
Court concluded, “prevents a sentencing court from consid-
ering a mandatory minimum under § 924(c) when calculating
an appropriate sentence” for other counts of conviction. Id.
Dean, therefore, is a permissive decision. It allows district
courts to consider a § 924(c) consecutive mandatory mini-
mum when determining an appropriate sentence, but it does
not require a district court to make any particular finding.
Here, the district court considered an appropriate sen-
tence under the § 3553(a) factors when sentencing Smith on
the grouped counts. The court did not indicate that it believed
it was bound to ignore the § 924(c) sentence when sentencing
Smith on the grouped counts, which was the error identified
in Dean. Indeed, during his sentencing argument, Smith re-
minded the court of its “discretion under both 3553(a) and
Dean v. United States to impose a total sentence that is appro-
priate under the circumstances.” While the district court did
not explicitly state that it considered the total sentence, it re-
lied on the § 3553(a) factors, explaining that it needed to “im-
pose a sentence that reflects the seriousness of the offense,
promotes respect for law, provides just punishment, provides
adequate deterrence to others and adequate deterrence to
you.” The fact that the court imposed a below-Guidelines

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No. 22-1447 7
sentence further indicates that the court deemed 120 months
an appropriate total sentence under the § 3553(a) factors.
C. Mitigating Arguments
Finally, Smith argues that the district court erred by inad-
equately considering eight mitigating arguments. We disa-
gree. The district court adequately addressed the arguments
it needed to.
1. Addressed Arguments
The district court explicitly discussed four of the argu-
ments Smith claims it ignored. Although the district court did
not address all of his arguments at length, “[a] short explana-
tion [of why an argument is rejected] will suffice where the
context and record make clear the reasoning underlying the
district court’s conclusion.” United States v. Kennedy-Robey,
963 F.3d 688, 691 (7th Cir. 2020) (quoting United States v.
Schroeder, 536 F.3d 746, 755 (7th Cir. 2008)).
First, Smith argues that he was a small-time drug dealer
with no history of violence. The district court noted this argu-
ment but was unconvinced by it: “The defense counsel has
noted the small amounts of drugs involved. It was, indeed,
fentanyl, which is very dangerous. [And] I’m troubled by the
… gun.”
Second, Smith argues that he carried a gun for protection
because Danville is a dangerous city, he had been shot previ-
ously, and several of his friends had been killed by firearms.
The court acknowledged that “the gun was there to protect
him and his drugs” and that “it may also be true that Danville
… is a dangerous place,” but it found that Smith contributed
to the danger by carrying “a weapon that had 12 bullets in it
at the time. I think that’s very serious.”

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8 No. 22-1447
Third, Smith argues that the district court ignored his
“family support, as evidenced by his several family character
letters.” Far from ignore these letters, the district court read
them, acknowledged they were mitigating, and even com-
mented on one that discussed Smith’s artistic talent.
Fourth, Smith argues that the district court stated that it
wanted Smith “to obtain his GED and attend vocational clas-
ses,” but it failed to consider the fact that he would be unable
to take these classes because of his § 924(c) conviction. Smith
misinterprets the district court’s statement about vocational
training. The court stated that it “sincerely hope[s]” Smith
gets his GED and attends vocational training, and the court
recommended that the Bureau of Prisons “maximize [Smith’s]
exposure to educational and vocational opportunities.” The
court did not, however, condition Smith’s sentence on his eli-
gibility for any particular program. Additionally, Smith is
mistaken about the effect of his § 924(c) conviction. That con-
viction bars him from receiving good-time credit under the
First Step Act of 2018 for participating in educational or voca-
tional programs, see 18 U.S.C. §§ 3632(d)(4)(D)(xxii), 3635(3),
but it does not necessarily bar him from participating in those
programs. See 28 C.F.R. §§ 544.20–.21, 544.50–.52.
The district court adequately, if somewhat briefly, consid-
ered each of these arguments. See Kennedy-Robey, 963 F.3d at
691. It committed no procedural error.
2. Routine Arguments
Two of Smith’s arguments are “stock argument[s] that the
district court was not required to address.” United States v.
Cheek, 740 F.3d 440, 455–56 (7th Cir. 2014) (citation omitted).

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No. 22-1447 9
First, Smith argues that the district court failed to consider
the fact that “[h]is prior criminal history had never involved
aggressive conduct against other individuals” and “[h]is prior
firearm offenses had been merely possessions.” But an “argu-
ment that none of [a defendant’s] numerous prior convictions
involved violence is essentially an argument that his criminal
history category substantially over-represents the seriousness
of his past crimes,” which the district court need not address.
Cheek, 740 F.3d at 455.
Second, Smith argues that the district court failed to con-
sider the fact that his weapon was designed—not modified—
to accept a large capacity magazine. As discussed above, this
argument is meritless as a challenge to this guideline’s appli-
cation. When framed as a mitigating argument, it is a “blanket
challenge to [a] guideline rather than one tailored to [Smith’s]
unique characteristics and circumstances,” so “it [is] not one
that the district judge [must] explicitly address.” United States
v. Brown, 880 F.3d 399, 409 (7th Cir. 2018) (quoting United
States v. Schmitz, 717 F.3d 536, 542 (7th Cir. 2013)). Even so, the
district court implicitly addressed this argument. It noted that
“there have been a lot of arguments about the gun,” but these
arguments did not change the fact that Smith “was in the pro-
cess of selling drugs at a time when he had the gun … on his
person.” Modified or not, the court found that carrying a fire-
arm in those circumstances was “very serious.”
The district court’s failure to explicitly discuss these argu-
ments was not an error.
3. Forfeited Arguments
Finally, Smith correctly notes that the district court failed
to address his last two mitigating arguments: (1) that he

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10 No. 22-1447
committed the offenses several months apart and did not
carry a firearm during the 2018 and 2019 drug purchases and
(2) that he cooperated upon his arrest. But the district court
had good reason not to address these points at the sentencing
hearing—Smith did not raise them. The closest he came to
making these arguments was saying that he had “never re-
sisted arrest,” but this statement was part of his argument
about his nonviolent criminal history.
Failing to present an argument to the district court consti-
tutes either waiver—if the failure was intentional—or forfei-
ture—if it was negligent. United States v. Burgess, 22 F.4th 680,
685 (7th Cir. 2022). Because we construe waiver principles lib-
erally in favor of criminal defendants and we can discern no
strategic advantage Smith could have gained by failing to
raise these arguments, we hold that Smith has forfeited, not
waived, them. See id. at 685–86. While waiver precludes our
review, we review arguments forfeited by a criminal defend-
ant for plain error. Id. To succeed on plain-error review, a de-
fendant must show that: “(1) there was an error; (2) the error
was plain; (3) the error affected [his] substantial rights …; and
(4) the error seriously impacted the fairness, integrity, or pub-
lic reputation of the proceedings.” Id. at 686 (quoting United
States v. Clark, 935 F.3d 558, 569–70 (7th Cir. 2019)).
Smith fails at step one because the district court committed
no error. The PSR reported the facts Smith believes the district
court should have discussed, and because the district court
adopted the PSR’s factual findings and based Smith’s sen-
tence in part on those facts, it implicitly considered them. In
the absence of an objection or a nonroutine sentencing argu-
ment, a district court is not obligated to discuss specific facts
from the PSR, provided that it “give[s] meaningful

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No. 22-1447 11
consideration to the § 3553(a) factors” and “state[s] the factors
on which the sentence is based.” Gates, 51 F.4th at 273 (quot-
ing Swank, 37 F.4th at 1334). The court did so here.
III. Conclusion
Smith has failed to show that the district court committed
any procedural error, and his below-Guidelines-range sen-
tence is substantively reasonable.
A FFIRMED

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