United States v. Malloy , 321 F. App'x 159 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-10-2009
USA v. Malloy
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3487
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"USA v. Malloy" (2009). 2009 Decisions. Paper 1556.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-3487
_____________
UNITED STATES OF AMERICA
v.
JOHN MALLOY,
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 05-cr-386)
District Judge: Honorable John E. Jones
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 9, 2009
Before: FUENTES, CHAGARES and ALDISERT Circuit Judges.
(Opinion Filed: April 10, 2009)
OPINION OF THE COURT
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FUENTES, Circuit Judge:
In 2005, John Malloy and others burglarized a firearms store, stealing 188
firearms. Malloy pled guilty to being a felon in possession of a firearm, in violation 18
U.S.C. § 922(g), and was sentenced to 120 months imprisonment. Malloy appeals his
sentence arguing that his offense level was calculated incorrectly. In particular, Malloy
argues that the District Court was only entitled to calculate his Guidelines’ range based on
facts to which he had stipulated. Further, Malloy argues that the District Court should
have given him a “minor role” reduction under United States Sentencing Guidelines
(U.S.S.G.) § 3B1.2.
Because we write exclusively for the parties, we discuss the facts only to the extent
necessary for the resolution of the issues on appeal. In 2005, Malloy and four others
traveled from Philadelphia to Tioga County, Pennsylvania to commit a burglary at an all-
terrain vehicle (ATV) business. Once in Tioga County, the group decided instead to
burglarize a firearms store. They went to the store in the late night hours, cut the
telephone line running to the store, pried open the front door, tampered with the alarm
and smashed display cases. They stole 188 firearms, as well as ammunition and other
goods. The group returned to Philadelphia, where Malloy and one other ground off the
serial numbers on the weapons. Each defendant kept a few of the firearms, and the rest
were sold. Malloy was indicted and eventually pled guilty, admitting responsibility for
his role in the offense.
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Malloy has prior convictions for—among other offenses—aggravated assault,
receiving stolen property, and burglary. The aggravated assault offense constituted a
second degree felony. The commentary to U.S.S.G. § 4B1.2 lists aggravated assault as a
“crime of violence.”
“As we have noted repeatedly, sentencing courts must continue to calculate a
defendant’s Guidelines sentence precisely as they would have before Booker.” United
States v. Ali, 508 F.3d 136, 142-143 (3d Cir. 2007) (reiterating that the standard of proof
under the Guidelines continues to be preponderance of the evidence). Thus, the District
Court did not err in making its own factual findings concerning Malloy’s criminal history
or the number of firearms involved in his offense.
We review such factual findings for clear error. United States v. Siegel, 477 F.3d
87, 89 (3d Cir. 2007). There was none here; the Government presented ample evidence
of Malloy’s aggravated assault conviction and of the number of firearms involved in the
offense.
Similarly, the District Court did not err in concluding that “Malloy was an integral
member of the offense” and not entitled to a minor role reduction. In particular, like the
District Court, we note that it is “particularly troubling that Malloy obliterated the serial
numbers from a portion of the guns.”
Finally, we conclude that the District Court did not abuse its discretion in
sentencing Malloy to the statutory maximum of 120 months, a sentence well below the
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otherwise applicable Guidelines’ range. In that regard, we note that the record reflects
that the District Court gave serious consideration to the factors under 18 U.S.C. §
3553(a). In particular, the District Court noted that deterrence was especially important in
this case because “it is quite clear . . . that to the extent that [Malloy]’s not been in prison,
that he’s been actively engaged in criminal enterprises.” The District Court emphasized
that Malloy’s criminal history, role in the burglary, and involvement in post-burglary
activities were all more serious than that of co-defendants who received lower sentences.
The District Court also noted the seriousness of the offense and the harm caused by stolen
firearms that make their way to the streets of Philadelphia.
For the foregoing reasons, we will affirm the District Court's judgment of
sentence.
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