United States v. Trudell Smith, Jr., 681 F.3d 932

Smith pled guilty to burglary in Indian country under 18 U.S.C. § 1153, following a plea deal that allowed evidence of uncharged conduct at sentencing.
The district court sentenced Smith to 57 months and 5 years of supervised release after an upward departure based on uncharged conduct.
The court credited testimony of the victims about a suspected attempted sexual assault during the burglary, though no physical evidence linked Smith to sexual assault.
Smith had two prior aggravated sexual assault convictions, increasing the likelihood of an attempted sexual assault finding.
The PSR advised a guideline range of 18 to 24 months for burglary; the court deviated upward to reflect the seriousness of uncharged conduct.
Smith appeals on the grounds that the departure rested on questionable credibility findings, process issues, due‑process concerns under Booker, and substantive reasonableness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the departure was based on erroneous factual findings.	Smith argues credibility errors in Aguilar/High Pipe.	Smith contends inconsistencies undermine credibility supporting departure.	No clear error; credibility found and considered credible.
Whether the court properly considered Smith’s acceptance of responsibility.	Smith argues failure to apply acceptance reduction before departure.	Court used proper sequencing per guidelines.	Departure proper; acceptance reduction applied before departure.
Whether uncharged conduct used for departure violates Booker.	Booker prevents basing sentence on judicially found facts without jury.	Uncharged conduct as sentencing factor within statutory range.	Not violated; sentence within statutory maximum and allowed as factor.
Whether the sentence is substantively unreasonable given burglary context.	Sentence excessive unless considering attempted sexual assault.	Court properly accounted for uncharged conduct in departure.	Not necessary to resolve; accepted rationale for departure.

Crumb v. United States, 902 F.2d 1337 (8th Cir. 1990) (review of depart-for-factual-error under clear error standard)
United States v. Bridges, 569 F.3d 374 (8th Cir. 2009) (district court credibility determinations at sentencing are virtually unreviewable)
United States v. Wunder, 414 F.3d 1019 (8th Cir. 2005) (credibility findings given deference at sentencing)
United States v. Vinton, 631 F.3d 476 (8th Cir.) (district court’s credibility determinations given deference)
United States v. Deegan, 605 F.3d 625 (8th Cir. 2010) (plain-error review for failure to preserve issue about acceptance of responsibility)
United States v. Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009) (Booker/Apprendi application to uncharged-conduct departures)
United States v. Galloway, 976 F.2d 414 (8th Cir. 1992 (en banc)) (uncharged crimes treated as sentencing factors, no Sixth Amendment issue)
Booker v. United States, 543 U.S. 220 (U.S. 2005) (any fact (other than prior convictions) may not support a sentence beyond statutory maximum without admission or jury finding)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing penalty beyond statutory maximum must be admitted or found by jury)