United States v. Kohn

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4824
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID EDWIN KOHN, JR., a/k/a David Johnson, a/k/a Officer
David Washington,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00645-TLW-1)
Submitted: June 24, 2010 Decided: August 11, 2010
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina; Aileen P. Clare, Research and Writing
Specialist, Columbia, South Carolina, for Appellant. Kevin F.
McDonald, Acting United States Attorney, Alfred W. Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Edwin Kohn, Jr., pled guilty, pursuant to a plea
agreement, to two counts of use of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c) (2006). Because
Kohn was convicted of violating 18 U.S.C. § 924(c), the
presentence report (“PSR”) calculated his sentence in accordance
with U.S. Sentencing Guidelines Manual (“USSG”) § 2K2.4(b)
(2006), which provides that the Guidelines sentence is the
minimum term of imprisonment required by statute — in Kohn’s
case, ten years to life imprisonment on the first count of
conviction and twenty-five years to life imprisonment on the
second. The Government moved for a downward departure, USSG §
5K1.1, p.s., based on Kohn’s substantial assistance. The court
granted the Government’s motion and sentenced Kohn to 274
months’ imprisonment. Kohn appeals his sentence. Finding no
error, we affirm.
On appeal, Kohn argues that the district court should
have considered the § 3553(a) sentencing factors, and not merely
the value of his assistance, in determining the extent of the
departure below the statutory minimum sentence. Kohn
acknowledges that this court has previously rejected a similar
challenge, see United States v. Hood, 556 F.3d 226 (4th Cir.
2009), thus establishing circuit authority binding on subsequent
panels. United States v. Collins, 415 F.3d 304, 311 (4th Cir.
2
2005) (“A decision of a panel of this court becomes the law of
the circuit and is binding on other panels unless it is
overruled by a subsequent en banc opinion of this court or a
superseding contrary decision of the Supreme Court.”) (internal
quotation marks omitted). Therefore, this claim fails.
Accordingly, we affirm the judgment of the district
court and deny the Government’s motion for summary affirmance as
moot. 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
3