United States v. Timothy M. Curtin ( 1996 )

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No. 96-2968
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Timothy M. Curtin, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 27, 1996
Filed: December 6, 1996
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Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Timothy M. Curtin appeals the 78-month sentence imposed by the
district court1 after he pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
knowingly possessing an unregistered sawed-off shotgun, in
violation of 26 U.S.C. §§ 5861(d) and 5871. He argues the court
should have given him a three-level acceptance-of-responsibility
reduction under U.S. Sentencing Guidelines Manual § 3E1.1; and,
relying on United States v. Lopez, 115 S. Ct. 1624 (1995), he
challenges the constitutionality of his section 922(g) conviction.
We cannot say the district court clearly erred in denying
Curtin an acceptance-of-responsibility reduction. See United
States v. Evans, 51 F.3d 764, 766 (8th Cir. 1995) (standard of
1
The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
review). The mere fact that he pleaded guilty did not entitle
Curtin to the reduction, and the court could consider unrelated
criminal conduct--a post-plea arrest for drug possession--in
determining the appropriateness of the reduction. See United
States v. Byrd, 76 F.3d 194, 197 (8th Cir. 1996). Although Curtin
asserted that the drug charge was dropped, he did not deny he
illegally possessed drugs while on bond awaiting sentencing. The
district court properly considered the police report, and Curtin
failed to show he had voluntarily withdrawn from criminal conduct
or associations. See United States v. Fetlow, 21 F.3d 243, 248 (8th
Cir.) (sentencing court may consider any relevant information,
provided that information has sufficient indicia of reliability to
support its probable accuracy), cert. denied, 115 S. Ct. 456
(1994); United States v. Morales, 923 F.2d 621, 628 (8th Cir. 1991)
(defendant bears burden for establishing acceptance of
responsibility).
Curtin's Lopez challenge to 18 U.S.C. § 922(g) is foreclosed
by our opinion in United States v. Bates, 77 F.3d 1101, 1103-04
(8th Cir.) (§ 922(g) is constitutional and not violative of
Commerce Clause), cert. denied, 117 S. Ct. 215 (1996).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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