United States v. Evans , 380 F. App'x 360 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5120
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY ROOSEVELT EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00054-FL-1)
Argued: May 14, 2010 Decided: May 28, 2010
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Mark Russell Sigmon, GRAEBE HANNA & WELBORN, PLLC,
Raleigh, North Carolina, for Appellant. Denise Walker, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On August 13, 2008, Timothy Evans pleaded guilty to one
count of being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g) and 924 (2006). The Government did not
assert in the indictment or otherwise that Evans knew the gun
was stolen. Nevertheless, in the Presentence Investigation
Report, the probation officer recommended a two-level sentencing
enhancement pursuant to section 2K2.1(b)(4) of the United States
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) because Evans
possessed a stolen firearm. At the sentencing hearing, Evans
objected to the enhancement on Sixth Amendment grounds, arguing
that the Government should have alleged in the indictment, and
proved beyond a reasonable doubt, that the firearm was stolen.
The district court rejected that argument, adopted the probation
officer’s recommendation, and sentenced Evans to 92 months’
imprisonment (the bottom of the applicable 92-to-115-month
Guidelines range) and three years’ supervised release.
I.
Evans timely noted this appeal. His attorney filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). In this
brief, Evans raises two issues: the district court assertedly
(1) miscalculated the Guidelines range and (2) imposed a
substantively unreasonable sentence.
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As to the first contention, Evans’s counsel noted that
rectifying the district court’s alleged mistake would not change
the applicable advisory Guidelines range, thus rendering any
error harmless. Petr.’s Br. 11. We have reviewed the record,
and we agree.
As to the second claim, Evans’s counsel conceded that it
had no merit, and we agree. Petr.’s Br. 18-19. The district
court properly considered the § 3553(a) factors, and Evans has
not rebutted the appellate presumption that the district court
imposed a reasonable within-Guidelines sentence. See United
States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
II.
Evans filed a supplemental brief in which he contends that
the district court violated due process when it increased his
sentence by two levels pursuant to U.S.S.G. § 2K2.1(b)(4).
Petr.’s Supp. Br. 2, 15. Section 2K2.1(b)(4) imposes a two-
level enhancement when a crime involves a stolen firearm, and
the relevant commentary provides that “[s]ubsection (b)(4)
applies regardless of whether the defendant knew or had reason
to believe that the firearm was stolen.” U.S.S.G. § 2K2.1 cmt.
n.8(B). Evans claims that the lack of a scienter requirement in
the commentary violates due process.
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Evans did not challenge the enhancement on due process
grounds in the district court, and therefore we review that
court’s sentencing order for plain error. See Fed. R. Crim. P.
52. Evans must show “(1) error, (2) that is plain, and (3) that
affects substantial rights.” United States v. Beasley, 495 F.3d
142, 148 (4th Cir. 2007) (internal quotation marks omitted). If
Evans demonstrates all three requirements, we may “exercise
[our] discretion to notice a forfeited error, but only if (4)
the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. In this case, even if
the district court erred in its interpretation of § 2K2.1(b)(4),
we cannot conclude that this error was “plain” because “for an
error to be ‘plain,’ the error must be plain ‘under current
law.’” Id. at 149. There existed no controlling law declaring
the commentary to § 2K2.1(b)(4) invalid on due process grounds
at the time of Evans’s sentencing, and there exists no such law
now. Thus Evans cannot show plain error.
III.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED
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