US v. Gregory Moffitt

Filing 920090729

Filed: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4809 (3:06-cr-00066-FDW) UNITED STATES OF AMERICA,

July 29, 2009

Plaintiff - Appellee, versus

GREGORY LASHAWN MOFFITT, Defendant - Appellant.

O R D E R

The court amends its opinion filed July 16, 2009, as follows: On page 2, the third sentence of the second paragraph is amended to read, AThe resulting sentencing range was seventy to eighty-seven months.@ For the Court - By Direction

/s/ Patricia S. Connor Clerk

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4809

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY LASHAWN MOFFITT, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:06-cr-00066-FDW)

Submitted:

June 26, 2009

Decided:

July 16, 2009

Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Peter Adolf, Emily Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: This case is before the court after resentencing on remand. Gregory Lashawn Moffitt appealed the 102-month sentence

imposed after he pled guilty to one count of possession of a firearm after having been convicted of a crime punishable by more than one year of imprisonment, in violation of 18 U.S.C. § 922(g) (2006). In our prior decision in this case, we

concluded that the district court erred in imposing a four-level enhancement to Moffitt's offense level pursuant to U.S.

Sentencing Guidelines Manual (USSG) § 2K2.1(b)(6) (2006) because the firearm was used in connection with another felony offense. We remanded was to any allow other the district to court to consider whether We

there

basis

impose

the

enhancement.

declined to consider Moffitt's other argument that the court erred in imposing a two-level enhancement pursuant to USSG

§ 2K2.1(b)(4) because the firearm was stolen. On remand, the district court concluded that the fourlevel enhancement pursuant to § 2K2.1(b)(6) was not appropriate. Moffitt's total offense level without this enhancement was

recalculated at twenty-three, and his criminal history category remained category IV. The resulting sentencing range was

seventy to eighty-seven months.

The district court sentenced

Moffitt to eighty-seven months of imprisonment.

2

In

his

objections

to

the

presentence

report

(PSR),

Moffitt first stated a general objection under United States v. Booker, 543 U.S. 220 (2005), based on his assertion that the Fourth Circuit had created a mandatory Guidelines system

contrary to Booker.

He then argued that judicial fact-finding

under this mandatory system implicated his confrontation rights as articulated in Crawford v. Washington, 541 U.S. 36 (2004). Moffitt also asserted that the enhancement for a stolen firearm was improper because the evidence that the gun was stolen was insufficient to support the enhancement. At sentencing, the district court concluded that the evidence was sufficiently reliable to establish by a

preponderance of the evidence that the firearm was stolen, and overruled Moffitt's objection. On appeal, Moffitt asserts that

the district court erred in enhancing his offense level for a stolen firearm. Circuit had He also repeats his claims that the Fourth a mandatory Guidelines system and his

created

confrontation claim based on Crawford, but offers no argument in support of those issues. The Government responds, urging

affirmance. This court reviews a district court's factual findings at sentencing for clear error and its legal determinations de novo. Cir. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th 1989). This deferential 3 standard of review requires

reversal only if this court is "left with the definite and firm conviction that a mistake has been committed." Stevenson, 396 F.3d 538, 542 (4th Cir. United States v. 2005) (quoting Moffitt was not

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). argues that the evidence before the district court

sufficiently reliable to support its conclusion that the firearm he possessed was stolen. merit. factual We find that this argument is without

Following Booker, a sentencing court continues to make findings concerning sentencing factors by a

preponderance of the evidence. F.3d 65, 72 (4th Cir. 2005). any evidence at sentencing §

United States v. Morris, 429 A sentencing court may consider

that

"has This

sufficient court has

indicia

of

reliability."

USSG

6A1.3(a).

"construed

various Supreme Court decisions as `recogniz[ing] a due process right to be sentenced only on information which is accurate.'" United States v. Nichols, 438 F.3d 437, 440 (4th Cir. 2006) (quoting United States v. Lee, 540 F.2d 1205, 1211 (4th Cir. 1976)). Moffitt acknowledges that the rules of evidence do not apply at sentencing and that the district court may consider hearsay district testimony National evidence court in making its the factual PSR and determinations. a police The

considered the

officer's the

describing Crime

information Center 4

obtained and the

through ATF

Information

(NCIC)

serial

number

trace

of

the

firearm.

The

court

specifically

took

judicial notice of the NCIC database and its reliability and accuracy establish and concluded the that the was evidence stolen. was sufficient to

that

firearm

Because

Moffitt's

assertions that the information was not sufficiently reliable are based on conjecture, we find that the district court

properly overruled his objection to this enhancement. Finally, Moffitt states, in summary fashion, that the district court violated his Fifth and Sixth Amendment rights by making factual findings based on a preponderance of the

evidence, and that his Confrontation Clause rights were violated because the Fourth Circuit has created a mandatory Guidelines system that gives rise to his Fifth and Sixth Amendment rights. Moffitt states that he wishes only to preserve these claims for further further. Accordingly, dispense with oral we affirm Moffitt's the sentence. facts and We legal appellate review and we thus do not consider them

argument

because

contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

5