US v. Nathan Solomon

Filing 920090720

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4409

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. NATHAN SOLOMON, a/k/a Bradley Allen Van Petten, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:03-cr-00602-TLW-1)

Submitted:

May 28, 2009

Decided:

July 20, 2009

Before TRAXLER, Chief Judge, and NIEMEYER and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Rose Mary Parham, Carrie A. Fisher, Assistant United States Attorneys, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Nathan Solomon pled guilty to conspiracy to file a false claim in connection with a firearms purchase, in violation of 18 U.S.C. §§ 371 & 922(a)(6) (2006), and filing a false claim on a firearms purchase application, in violation of 18 U.S.C. § 922(a)(6). The district court sentenced Solomon to 120

months' imprisonment on the conspiracy count and twenty months' imprisonment consecutively. on the false claim count, to be served

Solomon noted his appeal in conformity with the

district court's order permitting a belated appeal. Solomon first alleges that the district court erred in enhancing his base offense level four levels pursuant to U.S. Sentencing Guidelines Manual ("USSG") § 2K2.1(b)(5) (2002).

Because Solomon's claim is raised for the first time on appeal, it is subject to plain error review. Plain error requires

Solomon to establish that: (1) there was error; (2) the error was "plain;" and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). Even if he

makes this showing, "Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion

unless the error `seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'" Id. (quoting

2

United States v. Young, 470 U.S. 1, 15 (1985)). to establish plain error.

Solomon fails

In the 2002 version of the U.S. Sentencing Guidelines, section 2K2.1(b)(5) provided for a four-level enhancement to a defendant's base offense level "[i]f the defendant used or

possessed any firearm or ammunition in connection with another felony offense." USSG § 2K2.1(b)(5) (2002). Solomon admitted

paying a co-defendant with cocaine in exchange for purchasing firearms. district Thus, Solomon fails to establish plain error by the court in imposing the four-level enhancement. See

United States v. Washington, 528 F.3d 573, 574 (8th Cir. 2008). Solomon next argues that the district court committed plain error in sentencing him under the then-mandatory

sentencing guidelines.

This claim, also raised for the first When, as 543 U.S.

time on appeal, is likewise reviewed for plain error. here, sentencing a preceded United can show States that v. the Booker, district

220 (2005),

defendant

court's

erroneous application of the guidelines as mandatory affected his substantial rights only if the record reveals a

"nonspeculative basis for concluding that the treatment of the guidelines as mandatory `affect[ed] the district court's

selection of the sentence imposed.'"

United States v. White,

405 F.3d 208, 223 (4th Cir. 2005) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)). 3 We have reviewed the record

and conclude that there are no non-speculative grounds on which to conclude that the district a to court would have imposed a

different Therefore,

sentence Solomon

under fails

discretionary establish that

guidelines the error

system. by the

district court affected his substantial rights. * affirm the judgment of the district court. oral argument because in the the facts and legal before

Accordingly, we We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

We note that the district court's error of treating the guidelines as mandatory does not reflect adversely on the court, as it followed established pre-Booker authority and practice.

*

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