United States v. Naeem Cotton , 415 F. App'x 403 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-2553
____________
UNITED STATES OF AMERICA
v.
NAEEM COTTON,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 1-09-cr-00563-001)
District Judge: Honorable Renee M. Bumb
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
February 9, 2011
Before: JORDAN, GREENAWAY, JR. and WEIS, Circuit Judges.
(Filed: February 28, 2011)
____________
OPINION
____________
WEIS, Circuit Judge.
Defendant pleaded guilty to a one-count indictment charging him with
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Finding that the gun had been stolen, the District Court added an enhancement under
1
U.S.S.G. § 2K2.1(b)(4)(A). The resulting Guidelines range was 92 to 115 months, based
on a total offense level of 23 and Criminal History Category VI. The District Court
sentenced defendant to a 105-month term of imprisonment.
On appeal, defendant vigorously argues that there was inadequate proof
that the firearm had, in fact, been stolen. We are not persuaded that the District Court’s
finding on this point was clearly erroneous. See United States v. Sanchez, 507 F.3d 532,
538-39 (7th Cir. 2007) (affirming two-level sentence enhancement based upon police
report of stolen firearm, where other indicia of reliability were present); see also United
States v. Bates, 584 F.3d 1105, 1108-10 (8th Cir. 2009) (same, where, in absence of
police report, district court relied upon testimony of gun’s prior owner as to
circumstances of its theft).
In addition, the District Court stated that, even if it “had . . . not assessed
the two point adjustment for . . . the firearm being stolen, [it] nonetheless would have
varied upward to the [105-month] sentence” based on the § 3553(a) factors. See, e.g.,
United States v. Smalley, 517 F.3d 208, 214 n.6 (3d Cir. 2008) (“[I]f a district court
wishes to provide for the possibility that a different Guidelines calculation applies by
handing down an alternative sentence, it must still begin by determining the correct
alternative Guidelines range and properly justify the chosen sentence”).
Defense counsel presented a lengthy and thoughtful argument on behalf of
his client. The record before us reflects the District Court’s considered and extensive
2
analysis of the § 3553(a) factors. We find no significant procedural or substantive error
in the sentencing and, therefore, defer “‘to the . . . determination that the § 3553(a)
factors, on a whole,’ justify the sentence.” United States v. Tomko, 562 F.3d 558, 568
(3d Cir. 2009) (citation omitted).
Accordingly, we will affirm the Judgment of the District Court.
3