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Before Lynch, Chief Judge, Torruella, Circuit Judge, and Cudahy, *fn1 Senior Circuit Judge.

In 2005, Carl Smith was charged with two counts of distribution of cocaine and two counts of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). After a two day trial, a jury found Smith guilty of three of the four counts. In the presentence report (PSR), the probation office set Smith’s base offense level at 18, but because Smith’s criminal history included two burglary convictions, which are considered crimes of violence under the guidelines, he was deemed to be a career offender. See U.S.S.G. §§ 4B1.1, 4B1.2. His career offender status yielded an adjusted offense level of 32. He had a criminal history score of 17 and a criminal history category of VI. A total offense level of 32 and a criminal history category of VI yielded a guideline sentencing range (GSR) of 210 to 262 months.

Smith filed a motion for a downward departure under U.S.S.G. § 4A1.3(b) on the grounds that his criminal history category over- represented the seriousness of his predicate offenses. He also requested a variance pursuant to 18 U.S.C. § 3553(a), arguing that the non-violent nature of his crimes as well as his personal characteristics justified a below-guidelines sentence.*fn2 At the sentencing hearing, the district court acknowledged that the guideline range resulting from Smith’s career offender status was high, but concluded that Smith had failed to establish the existence of any mitigating factors. The court sentenced Smith to 210 months imprisonment with a three-year term of supervised release. Smith appeals his sentence.

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