Daily Record Legal Affairs Writer//July 29, 2014
//Daily Record Legal Affairs Writer
//July 29, 2014
A convicted Baltimore felon’s failure to heed a federal judge’s advice not only landed him back in prison, but led the judge on Tuesday to add two years to the time he will serve for having a .357 handgun on New Year’s Day.
“Take advantage of the fact that you’ve been given a break,” U.S. District Judge J. Fredrick Motz told Hassan Smith back in November, when Motz reduced Smith’s 15-year gun sentence under the Armed Career Criminal Act to time served and supervised release. That followed proceedings in state court, where Smith convinced a judge to vacate several earlier guilty pleas that qualified him as a career criminal.
Smith, however, abused his good fortune eight weeks after his release, arming himself just after midnight on Jan. 1, said Assistant U.S. Attorney Sandra Wilkinson. Smith pleaded guilty in February to being a felon in possession of a firearm and was sentenced in Baltimore City Circuit Court to five years in prison.
The U.S. attorney’s office then pressed the violation of supervised release charge. It urged Motz to add the maximum of two years to Smith’s sentence, plus one year of supervised release. The federal public defender’s office argued in vain for a six-month sentence for the violation.
Motz, who had cited Smith’s steps toward rehabilitation and warned him against returning to his old ways back in November, this time agreed with the prosecution, making the sentence consecutive.
“I don’t know what to do,” the judge told Smith on Tuesday. “The public needs to be protected.”
Motz’s decision followed a blistering attack on Smith from Assistant U.S. Attorney Sandra Wilkinson, who said a stiff prison sentence might succeed where the judge’s admonitions had not. Wilkinson pressed Motz to go beyond federal sentencing guidelines, which recommend a 12-to-18 month sentence for the probation violation, and use his discretion to impose a two-year term.
“I don’t care what the guidelines are in this case,” Wilkinson told Motz.
Smith, 27, is “a young man who is clearly not deterred by what this court has to say,” she added. “He needs to be punished to be deterred.”
Wilkinson said Smith quite likely fired his weapon in the wee hours of Jan. 1, as it was the sound of gunfire that drew police to the neighborhood where they found him armed.
“Luckily, nobody was killed,” Wilkinson said. “He is always going to have a gun out on the street. The court has a responsibility to protect the safety of the neighborhood.”
But Assistant Federal Public Defender Douglas Miller countered that Smith “has been appropriately punished” for the gun offense with his five-year prison sentence. Smith’s violation of probation was a “breach of trust” with the court for which he should be sentenced to an additional six months in prison, Miller said.
The defense attorney added that Smith’s possession of the gun was part of an unfortunate “cultural phenomenon” in some areas of Baltimore, where the New Year is celebrated by the holding or firing of guns. No physical evidence ever emerged that Smith had fired the weapon, Miller added.
Motz, however, rejected Miller’s benign characterization of Smith’s violation of probation.
“How does one stop that cultural phenomenon?” Motz said.
“Isn’t that what deterrence is all about?” he added. “This might be a cultural phenomenon but it has to stop.”
‘All we can do is predict’
Smith was arrested in 2010 after police observed him on a bicycle, carrying a gun that turned out to be loaded. He was federally indicted in 2011 as a felon in possession of a firearm.
In February 2012, Motz accepted his guilty plea to that charge. That May, Motz sentenced Smith to 15 years and eight months in prison as an “armed career criminal” under federal law, citing his four earlier drug convictions.
Following the sentencing, Smith filed coram nobis petitions with the Baltimore City Circuit Court, asking that at least three of his prior drug convictions be vacated so he would not be regarded as a career criminal. Judge Jeffrey M. Geller agreed, citing what he called the inordinate length of Smith’s sentence under the Armed Career Criminal Act.
As a result, Smith had to be resentenced without the career-criminal enhancement.
At the hearing last November, the U.S. attorney’s office pressed for a sentence near the new maximum of nearly 10 years in prison, pointing to Smith’s criminal history and saying he was sure to arm himself when he got out.
Defense counsel sought a sentence of time served, saying Smith had been so frightened by the 15-year sentence that he was “born again” and had taken advantage of every rehabilitation program presented to him behind bars.
Motz, a self-described agnostic, told the lawyers that they were both expressing “legitimate points of view” about something “nobody in this courtroom” could know, “probably even Mr. Smith, although Mr. Smith can control it more than any of the rest of us … All we can do is predict.”
On that occasion, Motz agreed with the defense.
“There’s hope for you…,” the judge told Smith. “Don’t get into any more trouble.”r