United States v. Smith, 127 F.3d 1388 (11th Cir. 1997). · Go Syfert
United States v. Smith, 127 F.3d 1388 (11th Cir. 1997). Cases Citing This Book View Copy Cite
83 citation events (33 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Darlin Abel Valencia Mero (ca11, 2021-03-10)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 41 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Darlin Abel Valencia Mero
11th Cir. · 2021 · signal: see also · quote attribution · 1 verbatim quote · confidence high
2d1.1(b)(1) is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction.
cited Cited as authority (rule) United States v. Edward Verdi-Bruno
11th Cir. · 2024 · confidence medium
The enhance- ment applies “whenever a firearm is possessed during conduct rel- evant to the offense of conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997).
cited Cited as authority (rule) United States v. Kevon Keith Holmes
11th Cir. · 2021 · confidence medium
United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997).
discussed Cited as authority (rule) United States v. Adrian Guillermo Cuartas
11th Cir. · 2021 · confidence medium
Relevant conduct includes acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997) (quoting U.S.S.G. § 1B1.3(a)(2)).
discussed Cited as authority (rule) Rackley v. United States
M.D. Fla. · 2019 · confidence medium
“In deciding whether the government satisfied its initial burden, relevant conduct includes acts that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Id. at 1220 (internal quotation marks omitted) (citing United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997)).
cited Cited as authority (rule) United States v. Nicholas J. Larry
11th Cir. · 2019 · confidence medium
The firearm enhancement applies “whenever a firearm is possessed during conduct relevant to the offense of conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997).
discussed Cited as authority (rule) United States v. Julius Andrew Reason
11th Cir. · 2018 · confidence medium
Application Note 11(A) to § 2D1.1 states that the dangerous weapon enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” The firearm enhancement is “to be applied 5 Case: 17-11132 Date Filed: 02/20/2018 Page: 6 of 9 whenever a firearm is possessed during conduct relevant to the offense of conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997).
discussed Cited as authority (rule) United States v. Gregory Bell
D.C. Cir. · 2015 · confidence medium
“The applicability of a specific offense characteristic, such as section 2D1.1(b)(1), depends on whether the conduct at issue is ‘relevant’ to the offense of conviction,” United States v. Pellegrini, 929 F.2d 55, 56 (2d Cir. 1991). “[T]he enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction,” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997), which “includes acts ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’” Id. (quoting U.S.S.G. § 1B1.3(a)(2)).
discussed Cited as authority (rule) United States v. Gregory Bell (2×)
D.C. Cir. · 2015 · confidence medium
“The applicability of a specific offense characteristic, such as section 2Dl.l(b)(l), depends on whether the conduct at issue is ‘relevant’ to the offense of conviction,” United States v. Pellegrini, 929 F.2d 55, 56 (2d Cir.1991). “[T]he enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction,” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997), which “includes acts ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’ ” Id. (quoting U.S.S.G. § 1B1.3(a)(2)).
cited Cited as authority (rule) United States v. Antonio Akel
11th Cir. · 2009 · confidence medium
The enhancement is to be applied if a firearm was possessed “during the offense of conviction or during related relevant conduct.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997).
discussed Cited as authority (rule) United States v. Abraham David Saftchick
11th Cir. · 2009 · confidence medium
In the case of a drug-trafficking offense, the guidelines provide for a two-level enhancement “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2Dl.l(b)(l). “[T]he [§ 2Dl.l(b)(l) ] enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997).
cited Cited as authority (rule) United States v. Demond Levail Osley
11th Cir. · 2008 · confidence medium
United States v. Smith, 127 F.3d 1388, 1389 (11th Cir.1997); United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995).
cited Cited as authority (rule) United States v. James Reed Griffin
11th Cir. · 2008 · confidence medium
United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997).
cited Cited as authority (rule) United States v. Charles Willis
11th Cir. · 2008 · confidence medium
United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997).
cited Cited as authority (rule) United States v. Mike Bent Robinson
11th Cir. · 2007 · confidence medium
United States v. Smith, 127 F.3d 1388, 1389 (11th Cir.1997) (per curiam).
cited Cited as authority (rule) United States v. Latravis Gallashaw
11th Cir. · 2007 · confidence medium
United States v. Smith, 127 F.3d 1388, 1389 (11th Cir.1997) (per curiam).
discussed Cited as authority (rule) United States v. Mike Linh Pham
11th Cir. · 2006 · confidence medium
We have held that “the [§ 2Dl.l(b)(l)] enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997).
discussed Cited as authority (rule) United States v. Stallings
unknown court · 2006 · confidence medium
In deciding whether the government satisfied its initial burden, relevant conduct includes “acts ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’ ” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997) (quoting U.S.S.G. § 1B1.3(a)(2)).
discussed Cited as authority (rule) United States v. Neyaunteu Stallings, A.K.A. \Coolio\"
unknown court · 2006 · confidence medium
If the government is successful in meeting this initial burden, then the evidentiary burden shifts to the defendant, who must demonstrate that a connection between the weapon and the offense was "clearly improbable." Id. (citing United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995)). 4 In deciding whether the government satisfied its initial burden, relevant conduct includes "acts `that were part of the same course of conduct or common scheme or plan as the offense of conviction.'" United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997) (quoting U.S.S.G. § 1B1.3(a)(2)).
discussed Cited as authority (rule) United States v. Dexter Hubbard
11th Cir. · 2006 · confidence medium
In deciding whether the government satisfied its initial burden, relevant conduct includes “acts ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997) (quoting U.S.S.G. § 1B1.3(a)(2)).
cited Cited as authority (rule) United States v. Michael Williams
11th Cir. · 2006 · confidence medium
United States v. Smith, 127 F.3d 1388, 1389 (11th Cir.1997).
discussed Cited as authority (rule) United States v. Soto
6th Cir. · 2003 · confidence medium
See David v. United States, 134 F.3d 470, 475-76 (1st Cir.1998) (the amendment "makes it plain that the 'rel evant conduct’ provisions ... apply to the adjustment in section D. 1(b)(1)”); United States v. Smith, 127 F.3d 1388, 1389-90 (11th Cir.1997) (noting the amendment in affirming an enhancement for possession of gun carried during a dismissed offense that occurred three months after the related offense of conviction); United States v. Quintero, 937 F.2d 95, 97-98 (2d Cir.1991) (gun possessed during dismissed drug count may be used for § 2D 1.1 (b)(1) enhancement on other drug count t…
cited Cited as authority (rule) United States v. Ira Harvey Liss
11th Cir. · 2001 · confidence medium
United States v. Smith, 127 F.3d 1388, 1389 (11th Cir.1997).
discussed Cited as authority (rule) United States v. Salery
M.D. Ala. · 2000 · confidence medium
“Relevant conduct includes acts ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’ ” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997) (quoting USSG § lB1.3(a)(2)).
discussed Cited as authority (rule) United States v. Hunter (2×)
11th Cir. · 1999 · confidence medium
United States v. Smith, 127 F.3d 1388, 1389 (11th Cir. 1997).
examined Cited as authority (rule) United States v. Hunter (6×)
11th Cir. · 1999 · confidence medium
United States v. Smith, 127 F.3d 1388, 1389 (11th Cir.1997).
discussed Cited as authority (rule) Dudley v. Wal-Mart 930
11th Cir. · 1999 · confidence medium
Neither the Supreme Court nor this Court has ever held this step to be an essential element of Batson.5 See Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (plurality 5 Although we have written on the issue in dicta, see United States v. Bennett, 928 F.2d 1548 , 1550 n.1 (11th Cir. 1991), superseded by statute on other grounds as stated in United States v. Smith, 127 F.3d 1388, 1389-90 (11th Cir. 1997), in a concurring opinion, see United States v. Alston, 895 F.2d 1362, 1374 (11th Cir. 1990) (Hatchett, J., concurring), and in a case tried before Batson, see United States v Gordon, 817 F.2d…
discussed Cited as authority (rule) Dudley v. Wal-Mart Stores, Inc.
11th Cir. · 1999 · confidence medium
Although we have written on the issue in dicta, see United States v. Bennett, 928 F.2d 1548 , 1550 n. 1 (11th Cir.1991), superseded by statute on other grounds as stated in United States v. Smith, 127 F.3d 1388, 1389-90 (11th Cir.1997), in a concurring opinion, see United States v. Alston, 895 F.2d 1362, 1374 (11th Cir.1990) (Hatchett, J., concurring), and in a case tried before Batson, see United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987), vacated in part on other grounds, 836 F.2d 1312 (11th Cir.1988), never have we held a district court’s application of Batson to be reversible …
discussed Cited as authority (rule) 79 Fair empl.prac.cas. (Bna) 136, 75 Empl. Prac. Dec. P 45,753, 12 Fla. L. Weekly Fed. C 481 Lillian D. Dudley, Clara L. Robertson v. Wal-Mart Stores, Inc.
11th Cir. · 1999 · confidence medium
Because "a less stringent standard applies to a motion for a new trial than to a motion for judgment as a matter of law," Holzapfel v. Town of Newburgh, 950 F.Supp. 1267, 1272 (S.D.N.Y.1997), rev'd on other grounds, 145 F.3d 516 (2nd Cir.1998), failure to meet the former standard is fatal to the latter 4 Wal-Mart contests only the removal of the three jurors replaced after the Batson hearing who would have sat on the jury if the court had heard the Batson challenges as they arose 5 Although we have written on the issue in dicta, see United States v. Bennett, 928 F.2d 1548 , 1550 n. 1 (11th Cir…
discussed Cited as authority (rule) United States v. Alred
11th Cir. · 1998 · confidence medium
Additionally, we have held that “the enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997) (per curiam).
discussed Cited as authority (rule) United States v. Alred
11th Cir. · 1998 · confidence medium
Additionally, we have held that "the enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction." United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997) (per curiam).
discussed Cited as authority (rule) United States v. Alred
11th Cir. · 1998 · confidence medium
Additionally, we have held that "the enhancement is to be applied whenever a firearm is 41 possessed during conduct relevant to the offense of conviction." United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997) (per curiam).
cited Cited "see" United States v. Miranda
11th Cir. · 1999 · signal: see · confidence high
See United States v. Smith, 127 F.3d 1388, 1389 (11th Cir.1997).
discussed Cited "see" United States v. Miranda
11th Cir. · 1999 · signal: see · confidence high
See United States v. Smith, 127 F.3d 1388, 1389 (11th Cir. 1997). 2 Miranda also argues that the district court erroneously gave two jury charges and refused to give three of Miranda’s requested jury charges, violated Miranda’s Confrontation Clause rights by curtailing the cross-examination of witnesses, and gave an Allen charge despite extrajudicial pressures on the jury and its revelation of its numerical division.
discussed Cited "see, e.g." GEOVANI JOHNSON v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2018 · signal: see also · confidence low
That court held that the failure of counsel “to follow up on his Batson objection could have been reasonably construed by the trial judge as an agreement that the expressed reasons were racially neutral.” Id.; see also United States v. Bennett, 928 F.2d 1548 , 1550 n.1 (11th Cir. 1991) (“In the instant case, however, the defendant’s attorney did not allege that the government’s explanation was pretextual at the time the government made its explanation for the strikes.”), superseded by statute on other grounds as stated in United States v. Smith, 127 F.3d 1388 , 1389–90 (11th Cir.…
discussed Cited "see, e.g." GEOVANI JOHNSON v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2018 · signal: see also · confidence low
That court held that the failure of counsel “to follow up on his Batson objection could have been reasonably construed by the trial judge as an agreement that the expressed reasons were racially neutral.” Id.; see also United States v. Bennett, 928 F.2d 1548 , 1550 n.1 (11th Cir. 1991) (“In the instant case, however, the defendant’s attorney did not allege that the government’s explanation was pretextual at the time the government made its explanation for the strikes.”), superseded by statute on other grounds as stated in United States v. Smith, 127 F.3d 1388 , 1389–90 (11th Cir.…
discussed Cited "see, e.g." United States v. Duque
10th Cir. · 1999 · signal: see also · confidence medium
Thus, the sentencing court looks not only to the offense of conviction, but also to all other acts “‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’” Roederer, 11 F.3d at 982 (quoting U.S.S.G. § 1B1.3(a)(2)); see also, e.g., United States v. Hunter, -- F.3d --, 1999 WL 227208, at *2 (11th Cir. Apr. 20, 1999) (“[A] firearm enhancement is ‘to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction’” (quoting United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997))); United States v.…
discussed Cited "see, e.g." United States v. Pearson
4th Cir. · 1998 · signal: see also · confidence medium
See United States v. Falesbork , 5 F.3d 715, 721 (4th Cir. 1993) (interpreting relevant criminal conduct in applying USSG § 2D1.1(b)(1) firearms enhancement); see also United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997) (authorizing enhancement if weapon possessed during relevant conduct related to the offense of conviction).
discussed Cited "see, e.g." United States v. Raul Trujillo, Francisco Nelson Fuentes
11th Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997) (holding that this court applies this enhancement whenever a firearm is possessed during conduct relevant to the offense of conviction).
discussed Cited "see, e.g." United States v. Trujillo
11th Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997) (holding that this court applies this enhancement whenever a firearm is possessed during conduct relevant to the offense of conviction). 17 Fuentes next argues that the connection between his gun and the cocaine transaction was clearly improbable because he left the gun in a separate office, and because he carried his gun legally as a security guard (he possessed a concealed weapon permit).
discussed Cited "see, e.g." United States v. Trujillo
11th Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., United States v. Smith, 127 F.3d 1388, 1390 (11th Cir.1997) (holding that this 6 We also note that this charge could not have been too unduly coercive, as the jury was unable to reach a verdict as to Ruiz after the district court gave it. 14 court applies this enhancement whenever a firearm is possessed during conduct relevant to the offense of conviction).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Marlon Jermaine SMITH, Defendant-Appellant
96-9097.
Court of Appeals for the Eleventh Circuit.
Nov 17, 1997.
127 F.3d 1388
1997 U.S. App. LEXIS 32306
1997 WL 687694
Clinton Alan Wheeler, Macon, GA, for Defendant-Appellant., James L. Wiggins, U.S. Atty., Jessica J-M Hagen, Asst. U.S. Atty., Macon, GA, for Plaintiff-Appellee.
Black, Henderson, Hill, Per Curiam.
Cited by 46 opinions  |  Published
[*1389] PER CURIAM:

Marlon Jermaine Smith appeals the judgment of sentence imposed by the United States District Court for the Middle District of Georgia for his conviction for possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). We affirm.

I.FACTS

In mid-1995, the Athens-Clarke County police received information from a confidential informant that Walter Bonds was involved in selling drugs from his automobile detailing shop in Athens, Georgia. On October 25, 1995, the informant went to the garage seeking to buy crack cocaine. Bonds told the informant that he would send someone to get the drug. At Bonds’ direction, Smith then left the garage and traveled to his grandmother’s residence at 1732 W. Hancock Street in Athens where he stopped briefly. He returned to the garage with the crack and sold it to the informant. The following day, the informant returned to the garage to purchase more of the drug. Bonds told her he would have Smith deliver the cocaine to her. Smith arrived shortly thereafter and sold the informant approximately one ounce of crack cocaine.

As a result of these activities, Bonds and Smith were indicted by a grand jury on November 30,1995. The indictment charged them with one count of conspiracy to distribute crack in violation of 21 U.S.C. § 846 and two counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). Later, on January 16, 1996, police agents staked out the house on W. Hancock Street for the purpose of arresting Smith. Shortly thereafter, Smith arrived, got out of his car and walked around to the back of the house. He returned quickly and drove away. The agents followed, stopped and arrested him a few blocks from the residence. At the time of the arrest, the agents found a loaded .380 semi-automatic gun on the driver’s seat. A passenger in the car also had a loaded gun in his jacket. A search of the car disclosed a Crown Royal bag containing a rock of crack cocaine and a half-smoked marijuana cigarette. The agents then returned to the house on W. Hancock Street and obtained the consent of Smith’s grandmother to They found eight slabs of crack cocaine in an old metal cabinet behind the house. That cocaine was in another Crown Royal bag. Based on this discovery, a superseding indictment was returned adding a fourth count for possession with intent to distribute crack cocaine on January 16, 1996, in violation of 21 U.S.C. § 841(a)(1). search the premises.

Smith pleaded guilty to Count Two of the indictment dealing with the October 25, 1995 sale of cocaine. The presentence investigation report recommended a two-level enhancement of his base offense score permitted by U.S.S.G. § 2Dl.l(b)(l) for possession of the firearm found on the seat beside him at the time of his arrest on January 16, 1996. Smith argued that the enhancement was improper because the gun had not been in his possession at the time of the October 25, 1995 transaction. The government contended that possession of the gun was part of the same course of conduct and that the sentence was properly enhanced because of this pattern of behavior. The district court overruled Smith’s objection, added two levels to his base offense, and sentenced him to 72 months in prison.

II.STANDARD OF REVIEW

We review the district court’s application of the Sentencing Guidelines de novo and its findings of fact for clear error. U.S. v. Hall, 46 F.3d 62, 63 (11th Cir.1995).

III.DISCUSSION

On appeal, the only issue before us is whether the district court erred in enhancing Smith’s base offense score by two levels for possession of a firearm as provided in U.S.S.G. § 2D1.1(b)(1). Prior to November 1991, § 2D1.1(b)(1) authorized a two-level enhancement “if a firearm or other dangerous weapon was possessed during commission of the offense.... ” Applying this version of the guideline, a panel of this court held that the weapon must be possessed during the offense of conviction, not just during the period of the defendant’s relevant conduct. U.S. v. Bennett, 928 F.2d 1548, 1557 (11th Cir.1991). In November 1991, however, the guideline was amended to delete the restriction that the weapon must be possessed dur[*1390] ing the offense of conviction. This court has not expressly addressed the effect of this amendment on its decision in Bennett. 1

Other courts of appeals have found that the enhancement is now authorized if the weapon was possessed during the offense of conviction or during related relevant conduct. See U.S. v. Wetwattana, 94 F.3d 280, 284 n. 6 (7th Cir.1996); see also U.S. v. Ortega, 94 F.3d 764, 767-68 (2d Cir.1996); U.S. v. Vital, 68 F.3d 114, 119 (5th Cir.1995); U.S. v. Roederer, 11 F.3d 973, 982 (10th Cir.1993); U.S. v. Falesbork, 5 F.3d 715, 721 (4th Cir.1993). The Seventh Circuit Court of Appeals has held that “the criminal defendant who pleads guilty to a single-offense narcotics transaction is now fair game for the application of the rules of relevant conduct to the weapons enhancement, even if the conspiracy count is dismissed.” U.S. v. Mumford, 25 F.3d 461, 469 (7th Cir.1994). We agree with this reasoning and hold that the enhancement is to be applied whenever a firearm is possessed during conduct relevant to the offense of conviction.

Relevant conduct includes acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction....” U.S.S.G. § lB1.3(a)(2). As the Fifth Circuit Court of Appeals has noted, the circumstances of the defendant’s arrest, if of the same nature as the offense of conviction, is “relevant conduct for sentencing purposes.” Vital, 68 F.3d at 119. In this case, the superseding indictment charged Smith with possession with intent to distribute crack cocaine on January 16,1996, the day he was arrested. This is clearly relevant conduct for purposes of applying any sentencing enhancements. Since Smith had a firearm on him at the time he was arrested, he possessed a firearm within the meaning of § 2D1.1(b)(1). Therefore, the district court did not err in enhancing the sentence in this case.

The judgment of the district court is AFFIRMED.

1

. Alter the parties filed their briefs in this appeal, another panel of our court decided U.S. v. Cooper, 111 F.3d 845 (11th Cir.1997). The court held that § 2D 1.1 (b)(1) requires "the government to show by a preponderance of the evidence that the firearm was present at the site of the charged conduct.” Id. at 847. However, a closer examination of Cooper reveals a material difference in the operative facts in that case and those surrounding the events here. In Cooper, the firearms were not on the defendant's person when he was arrested nor were they found in proximity to the drugs. They, therefore, lacked the necessary connection to the defendant and the crime to which he pled guilty to support application of the enhancement. In this case, Smith had the weapon and a small quantity of drugs with him at the time of his arrest.