# United States v. Smith Jean

> Court of Appeals for the Eleventh Circuit · June 7, 2016 · 651 F. App'x 963

URL: https://www.frixlaw.com/law-library/cases/3209997

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Smith JEAN, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** June 7, 2016
- **Citations:** 651 F. App'x 963
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Tjoflat, Jordan, Carnes
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Case: 15-11631 Date Filed: 06/07/2016 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 15-11631
Non-Argument Calendar
________________________

D.C. Docket No. 1:14-cr-20830-UU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SMITH JEAN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(June 7, 2016)

Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
Case: 15-11631 Date Filed: 06/07/2016 Page: 2 of 4

Smith Jean and Beatrice Simeon were charged in a six-count indictment with

conspiracy to steal government property or money, in violation of 18 U.S.C.

§§ 371, 641, Count One, and with theft of government property or money, in

violation of 18 U.S.C. § 641, Counts Two through Six. Jean pled guilty to Counts

One and Two, and the District Court sentenced him to concurrent prison terms of

51 months. Jean now appeals his sentences. First, Jean argues that the District

Court erred in not adjusting his offense level under the Sentencing Guidelines

downward by one level, pursuant to U.S.S.G. § 3E1.1(b), for “assist[ing]

authorities in the investigation or prosecution of his own misconduct by timely

notifying authorities of his intention to enter a plea of guilty.” 1 Second, Jean

argues that his sentences are significantly harsher than Simeon’s, creating an

unwarranted sentencing disparity that renders his sentences substantively

unreasonable.

1
U.S.S.G. § 3E1.1., “Acceptance of Responsibility,” states:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense,
decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level
determined prior to the operation of subsection (a) is level 16 or greater, and upon
motion of the government stating that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by timely notifying authorities of his
intention to enter a plea of guilty, thereby permitting the government to avoid preparing
for trial and permitting the government and the court to allocate their resources
efficiently, decrease the offense level by 1 additional level.

2
Case: 15-11631 Date Filed: 06/07/2016 Page: 3 of 4

After the District Court pronounced sentence, it asked Jean and his lawyer

the following: “[D]oes the defendant or his counsel object to the Court’s findings

of fact or to the manner in which the sentence was pronounced?” Jean’s lawyer

responded, “No, Your Honor.”

In his opening brief on appeal, Jean cites U.S.S.G. § 3E.1.1 in advancing his

first argument, but he fails to state that he timely notified the government of his

intention to plead guilty or that the government abused its discretion in not moving

the District Court for a § 3E1.1(b) adjustment. But these two points are essential to

his § 3E1.1(b) argument. In failing to mention either point, Jean effectively

abandoned his first argument. See United States v. Barsoum, 763 F.3d 1321, 1333

(11th Cir. 2014).

Because Jean declined the District Court’s request to enter an objection to

the manner in which his sentenced was pronounced, we review his second

argument for plain error. United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th

Cir. 2014) (per curiam). To establish plain error, a party must show that (1) the

district court erred; (2) the error was plain or obvious; (3) the error harmed or

prejudiced the party’s substantial rights; and (4) the error damaged the fairness,

integrity, or reputation of the proceedings. Id. In order to meet the second prong

of the plain-error test, the error must be “contrary to explicit statutory provisions or

to on-point precedent in this Court or the Supreme Court.” United States v.

3
Case: 15-11631 Date Filed: 06/07/2016 Page: 4 of 4

Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (per curiam) (quotation marks and

citation omitted).

Jean points to no statute or precedent from this Court or the Supreme Court

that would have informed the District Court that the sentences it imposed were

substantively unreasonable. His second argument fails as well.

Jean’s sentences are therefore

AFFIRMED.

4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3209997. Public record. Not legal advice.