United States v. Sha Kendrick Smith

In United States v. Smith, —- F.4th —-, No. 23-20354 (5th Cir. Aug. 16, 2024), the Fifth Circuit affirmed the defendant’s sentence and upheld two sentencing enhancements under USSG §§ 2G1.3(b)(2)(B) & 3A1.1(b)(1).

For both rulings, the standard of review played a significant role. When the Fifth Circuit reviews a district court’s sentencing decisions, it reviews factual findings for clear error. It will not find clear error “if the district court’s finding is plausible in light of the record as a whole,” which means the Court must be “left with the definite and firm conviction that a mistake has been committed.” United States v. Pringler, 765 F.3d 445, 451 (5th Cir. 2014) (cleaned up).

Issue 1: Did the district court err by finding that Smith “unduly influenced a minor to engage in prohibited sexual conduct”? No. The district court’s decision was “plausible” in light of the record, and that is all it takes for the Fifth Circuit to affirm a factual finding.

Here, the Fifth Circuit created two bullet-point lists to identify facts on both sides of this question. At the end, it asked, “Considering these facts as a whole, could one plausibly” reach the same conclusion as the district court? “Easily.”

Issue 2: Did the district court err by deeming Smith’s minor victim a “vulnerable victim” under USSG § 3A1.1(b)(1)? No. Under Fifth Circuit precedent, a defendant may receive this enhancement even if he did not “target” the victim due to their vulnerability. Instead, the test is only whether he knew, or should have known, about the vulnerability. Here, that standard was met.

Smith argued that the district court should not have considered the minor victim’s age in making this decision because the age was already incorporated into the base offense level, which only applied to enticing a minor. See USSG § 2G1.3(a)(3). But according to the Fifth Circuit, “[r]ead broadly, this is obviously wrong.” The vulnerable-victim enhancement cannot be based on age-related factors only if “the victim’s vulnerability is … fully incorporated into the offense guideline.” United States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013). Here, the fact that the victim was 13 "made her “relatively more vulnerable than an otherwise similarly situated seventeen-year-old,” even though the base offense level would treat both ages the same.