United States v. Jonathan Lattimore , 454 F. App'x 165 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4080
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JONATHAN LATTIMORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:09-cr-00444-RWT-2)
Submitted: November 8, 2011 Decided: November 21, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elita C. Amato, LAW OFFICE OF ELITA C. AMATO, Arlington,
Virginia, for Appellant. Rod J. Rosenstein, United States
Attorney, Mara Zusman Greenberg, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Lattimore appeals his 120-month sentence
imposed following his guilty plea to two counts of being a
convicted felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (2006). On appeal, Lattimore argues that the
district court erred (1) in assessing two criminal history
points for each of two prior juvenile adjudications; (2) in
applying a four-level enhancement for firearms trafficking; and
(3) in creating an unwarranted sentencing disparity between
Lattimore and his codefendants. We affirm.
We review a sentence imposed by a district court under
a deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007); United States v. Lynn, 592 F.3d
572, 578 (4th Cir. 2010) (abuse of discretion standard of review
applicable when defendant properly preserves a claim of
sentencing error in district court “[b]y drawing arguments from
[18 U.S.C.] § 3553 [(2006)] for a sentence different than the
one ultimately imposed”). In conducting this review, we must
first examine the sentence for significant procedural error,
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51. In reviewing the
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district court’s application of the Guidelines, we review
findings of fact for clear error and questions of law de novo.
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
Under U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.2(d)(2)(A) (2010), the district court should assess two
criminal history points for “each adult or juvenile sentence to
confinement of at least sixty days if the defendant was released
from such confinement within five years of his commencement of
the instant offense.” Lattimore argues that his juvenile
sentences did not qualify as “confinement” for purposes of
§ 4A1.2(d)(2)(A). We need not determine whether Lattimore is
correct because the district court would have calculated the
same Guidelines range, and thus imposed the same sentence, even
if it had applied USSG § 4A1.2(d)(2)(B), as Lattimore argues was
appropriate. See United States v. Savillon-Matute, 636 F.3d
119, 123 (4th Cir. 2011), cert. denied, 2011 WL 308873 (U.S.
Oct. 17, 2011) (No. 11-5393). Therefore, this claim entitles
Lattimore to no relief.
Next, Lattimore challenges application of a Guidelines
enhancement for firearms trafficking. In applying a sentencing
enhancement, the district court must find by a preponderance of
the evidence that the conduct underlying the enhancement
occurred. See United States v. Grubbs, 585 F.3d 793, 803 (4th
Cir. 2009). Under USSG § 2K2.1(b)(5), a four-level increase in
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offense level is appropriate if the defendant engaged in
firearms trafficking. Subsection (b)(5) applies if the
defendant
(i) transported, transferred, or otherwise disposed of
two or more firearms to another individual, or
received two or more firearms with the intent to
transport, transfer, or otherwise dispose of firearms
to another individual; and (ii) knew or had reason to
believe that such conduct would result in the
transport, transfer, or disposal of a firearm to an
individual (I) whose possession or receipt of the
firearm would be unlawful; or (II) who intended to use
or dispose of the firearm unlawfully.
USSG § 2K2.1 cmt. n.13(A).
Lattimore concedes that the evidence showed that he
transported two or more firearms; however, he argues that the
evidence was insufficient to support the district court’s
finding that he knew or had reason to believe that the person to
whom the firearms were transferred would unlawfully possess them
or intended to use or dispose of them unlawfully. We conclude
that a preponderance of the evidence showed that Lattimore, at
the very least, had reason to believe that the person to whom he
transferred the firearms would possess them unlawfully or
intended to use or dispose of them unlawfully, where Lattimore
repeatedly sold firearms to the purchaser during drug
transactions. Accordingly, we hold that the district court did
not abuse its discretion in applying a four-level enhancement
pursuant to § 2K2.1(b)(5).
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Finally, Lattimore challenges the disparity between
his sentence and those of his codefendants. In imposing a
sentence, a district court must consider “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” 18
U.S.C. § 3553(a)(6). A district court, however, has “extremely
broad discretion when determining the weight to be given each of
the § 3553(a) factors.” United States v. Jeffrey, 631 F.3d 669,
679 (4th Cir. 2011), cert. denied, 2011 WL 4532052 (U.S. Oct. 3,
2011) (No. 10-10894).
Lattimore argues that the district court created an
unwarranted sentencing disparity because his codefendants were
sentenced to significantly lower sentences than he was. We hold
that it was well within the district court’s broad discretion to
impose on Lattimore a 120-month sentence; the court clearly
noted that Lattimore’s extensive criminal history and his role
in the offense warranted the challenged disparities. Moreover,
this court, along with the majority of the circuits, has
recognized that § 3553(a)(6) is aimed at eliminating national
sentencing disparities, not disparities between codefendants.
United States v. Withers, 100 F.3d 1142,1149 (4th Cir. 1996);
see also United States v. Simmons, 501 F.3d 620, 623-24 (6th
Cir. 2007) (collecting cases).
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We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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