United States v. Angel Santillan , 458 F. App'x 253 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4378
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGEL SANTILLAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00269-WO-1)
Submitted: December 7, 2011 Decided: December 16, 2011
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Jones, BELL, DAVIS & PITTS, PA, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Angel Santillan appeals his thirty-month sentence
following a guilty plea to possession of a firearm by an
unlawful alien, in violation of 18 U.S.C. § 922(g)(5) (2006).
Santillan argues that the district court erred by (1)
calculating his base offense level at twenty based upon his
possession of a “short-barreled rifle,” pursuant to the United
States Sentencing Guidelines (“USSG”) § 2K2.1(a)(4); and (2)
applying a two-level enhancement for possession of a stolen
firearm, pursuant to USSG § 2K2.1(b)(4). We affirm.
Santillan’s claims of sentencing error are raised for
the first time on appeal. Therefore, we review the sentence
imposed for plain error. See Fed. R. Crim. P. 52(b). To
establish plain error, Santillan must show that (1) an error was
made; (2) the error is plain; (3) the error affects his
substantial rights; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings, warranting the exercise of this court’s discretion
to correct the error. United States v. Wilkinson, 137 F.3d 214,
223 (4th Cir. 1998) (internal quotation marks and citation
omitted). In the sentencing context, an error affects
substantial rights if the defendant can show that the sentence
imposed “was longer than that to which he would otherwise be
subject.” United States v. Washington, 404 F.3d 834, 849 (4th
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Cir. 2005); see also United States v. Ford, 88 F.3d 1350, 1356
(4th Cir. 1996) (“[S]entencing a defendant at the wrong
guideline range seriously affects the fairness, integrity, and
public reputation of the judicial proceedings.”).
USSG § 2K2.1(a)(4) provides a base offense level of
twenty when a prohibited person commits an offense involving a
“firearm that is described in 26 U.S.C. § 5845(a),” which
includes a short-barreled rifle. Santillan argues that the
district court committed plain error when it calculated his base
offense level at twenty, pursuant to subsection (a)(4), “absent
any evidence in the record that he knew that one of the two
firearms was a short-barreled rifle.”
We decline to impose a scienter requirement under
§ 2K2.1(a). See United States v. Saavedra, 523 F.3d 1287, 1289-
90 (10th Cir. 2008) (“The text of § 2K2.1(a)(5) does not contain
a scienter requirement, and we will not presume such a
requirement.”); United States v. Fry, 51 F.3d 543, 546 (5th Cir.
1995) (“[Section 2K2.1(a)(3)] is plain on its face and should
not . . . be read to imply a scienter requirement.”).
Therefore, we hold the district court did not plainly err by
calculating Santillan’s base offense level at twenty pursuant to
§ 2K2.1(a)(4).
Santillan next contends that the district court’s
application of a two-level enhancement for possession of a
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stolen firearm, pursuant to USSG § 2K2.1(b)(4), constituted
plain error. Santillan argues that application of such an
enhancement, absent evidence of his knowledge that the firearm
was stolen, violates his due process rights. However, the
commentary to § 2K2.1 explicitly authorizes a two-level increase
“regardless of whether the defendant knew or had reason to
believe that the firearm was stolen.” USSG § 2K2.1, cmt.
n.8(B). Moreover, several other circuits have expressly
rejected constitutional challenges to the stolen gun
enhancement. See, e.g., United States v. Martinez, 339 F.3d
759, 762 (8th Cir. 2003) (“We now join every other circuit to
have addressed this issue and explicitly hold that § 2K2.1(b)(4)
does not violate the constitution.”); United States v. Murphy,
96 F.3d 846, 849 (6th Cir. 1996) (holding that stolen firearm
enhancement does not violate due process); United States v.
Griffiths, 41 F.3d 844, 846 (2d Cir. 1994) (“We now explicitly
hold that § 2K2.1(b)(4) . . . does not violate the due process
clause.”). Thus, we find that the district court did not commit
plain error in applying the two-level enhancement for possession
of a stolen firearm.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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