US v. Michael Darby

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00184-MBS-9 Copies to all parties and the district court/agency. [998823341].. [11-4660]

Appeal: 11-4660

Document: 45

Date Filed: 04/02/2012

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4660

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ANTHONY DARBY,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.
Margaret B. Seymour, Chief
District Judge. (5:10-cr-00184-MBS-9)

Submitted:

March 29, 2012

Decided:

April 2, 2012

Before WILKINSON, KING, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Leslie T. Sarji, VITETTA.SARJI LAW GROUP, LLC, Daniel Island,
South Carolina, for Appellant.
Julius Ness Richardson,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-4660

Document: 45

Date Filed: 04/02/2012

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PER CURIAM:
Michael Anthony Darby appeals his sixty-month sentence
imposed pursuant to his guilty plea to conspiracy to make false
statements
licensed

with

regard

dealers,

to

to

the

engage

in

acquisition
the

of

business

firearms
of

from

dealing

in

firearms in interstate commerce, and to travel in interstate
commerce to acquire firearms with the intent to engage in the
business of firearms without a federal license, in violation of
18 U.S.C. § 371 (2006).

On appeal, counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
no

meritorious

issues

for

appeal

but

questioning

whether

enhancements to Darby’s offense level were warranted under U.S.
Sentencing

Guidelines

Manual

§§

3B1.1(b),

2K2.1(b)(4)

(2010).

Darby was notified of his right to file a pro se supplemental
brief, but he did not do so.
a responsive brief.
We

The Government elected not to file

We affirm.

review

a

district

court’s

application

of

the

Guidelines during sentencing de novo and its factual findings
for clear error.
Cir.

2010).

A

United States v. Mehta, 594 F.3d 277, 281 (4th
district

court

must

make

relevant

factual

findings at sentencing based on its view of the preponderance of
the evidence.

United States v. Young, 609 F.3d 348, 357 (4th

Cir. 2010).

2

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Darby

Date Filed: 04/02/2012

first

argues

the

Page: 3 of 4

district

court

improperly

enhanced his sentence for his role in the offense under USSG
§ 3B1.1(b) because the same facts were used to establish his
base

offense

enhancement

level

under

constituted

USSG

§

2K1.1

and,

impermissible

therefore,

“double

the

counting.”

Pursuant to USSG § 3B1.1(b), a defendant qualifies for a threelevel enhancement if he was “a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive.” USSG § 3B1.1(b).
Having reviewed the record, we conclude that the district court
did not err in imposing the enhancement.
Darby also asserts that the district court erred in
applying

an

enhancement

for

possession

of

a

firearm

with

an

obliterated serial number because there was no evidence he had
knowledge

of

the

obliterated

serial

number.

The

Guidelines

provide for a four-level enhancement if a firearm had an altered
or

obliterated

serial

number.

USSG

§

2K2.1(b)(4).

The

accompanying commentary specifically states that the enhancement
applies “regardless of whether the defendant knew or had reason
to believe that the firearm . . . had an altered or obliterated
serial number.”

USSG §2K2.1(b)(4) cmt. n. 8(B); see also United

States v. Statham, 581 F.3d 548, 553 (7th Cir. 2009) (stating
that the defendant need not have known that the serial numbers
had been removed from the weapons for the enhancement to apply);
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Appeal: 11-4660

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United

v.

that

Brown,

514

the

States

(finding

Date Filed: 04/02/2012

F.3d

strict

liability

Page: 4 of 4

256,

269

nature

of

(2d

Cir.

this

2008)

provision

reasonably imposes the burden on the felon to ensure the number
is not obliterated, and that such a burden does not violate due
process); cf. United States v. Mobley, 956 F.2d 450, 452-53 (3d
Cir.

1992)

(finding

that

the

language

of

the

enhancement

contained no scienter requirement, and no such requirement would
be read into the provision).

We therefore find no error in the

imposition of this enhancement.
In accordance with Anders, we have examined the entire
record for potentially meritorious issues and have found none.
We

affirm

the

judgment

of

the

district

court.

This

court

requires that counsel inform Darby, in writing, of his right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Darby requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may move to withdraw.

Counsel’s motion must state that a copy

thereof was served on Darby.

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

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