USA v. Timmothy Lakosky


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USA v. Timmothy Lakosky Doc. 0 Case: 09-11133 Document: 00511206759 Page: 1 Date Filed: 08/17/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-11133 S u m m a r y Calendar August 17, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. T IM M O T H Y ALLEN LAKOSKY, D e fe n d a n t - Appellant A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 6:09-CR-26-1 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* T im m o th y Allen Lakosky appeals the sentence imposed following his c o n v ic t io n for possession of stolen firearms and aiding and abetting. He c o n t e n d s that the district court erred in assessing a four-level enhancement that a p p lie s when a defendant has engaged in firearm trafficking. s u ffic ie n t evidence to support the enhancement. We AFFIRM. T h e enhancement at issue applies when "the defendant engaged in the t r a ffic k in g of firearms." * There was U.S.S.G. 2K2.1(b)(5). An official note to this Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 09-11133 Document: 00511206759 Page: 2 No. 09-11133 Date Filed: 08/17/2010 e n h a n c e m e n t states that it is applicable when the defendant "[k]new or had r e a s o n to believe that such conduct would result in the . . . transfer . . . of a fir e a r m to an individual . . . [w]ho intended to use or dispose of the firearm u n la w fu lly ." Id. app. n. 13(A)(ii). Lakosky does not dispute that he provided two firearms to his coc o n s p ir a t o r s , Jenene and Roger Conroy. He contends, though, that the evidence d id not support the finding that the Conroys intended to trade the firearms for d r u g s or that Lakosky was aware of that purpose. This, however, was not his o b je c t io n in the district court. Lakosky objected to the Section 2K2.1(b)(5) e n h a n c e m e n t on a basis he has now abandoned. Consequently, the district court w a s not given an opportunity to consider the issue and address the evidentiary q u e s t io n . See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th C ir . 2007). Our review of this newly raised objection is for plain error. United States v . Salazar, 542 F.3d 139, 147 (5th Cir. 2008). To satisfy this standard, there m u s t be error, it must be plain, and it must affect the defendant's substantial r ig h t s . Id. Then, even if there is plain error, we will only exercise our discretion t o correct the error if it "seriously affects the fairness, integrity or public r e p u t a tio n of judicial proceedings." Id. at 148 (citation omitted). In applying this enhancement, the district court adopted the findings and a n a ly s is contained in Lakosky's presentence report (PSR) and PSR addendum. "[A] district court may adopt the facts contained in a PSR without further in q u ir y if those facts have an adequate evidentiary basis with sufficient indicia o f reliability and the defendant does not present rebuttal evidence or otherwise d e m o n s t r a t e that the information in the PSR is unreliable." United States v. R o d r ig u e z , 602 F.3d 346, 363 (5th Cir. 2010) (quoting United States v. Cabrera, 2 8 8 F.3d 163, 173-74 (5th Cir. 2002)). The evidentiary basis for the PSR in this case was adequate. The PSR was b a s e d on information obtained from the Indictment, the Factual Resume, 2 Case: 09-11133 Document: 00511206759 Page: 3 No. 09-11133 Date Filed: 08/17/2010 in v e s t ig a t iv e reports prepared by law enforcement, as well as personal in t e r v ie w s with law enforcement agents. According to the PSR, "The defendant p r o v id e d two pistols to Jenene Findley Conroy and Roger Conroy, both of whom w e r e known users of methamphetamine and convicted felons, for the purpose of th em trading or exchanging the weapons for methamphetamine and marijuana." Lakosky's PSR addendum did not contradict that statement. The PSR also in d ic a te s that the Conroys, who were Lakosky's co-conspirators, had previously e x c h a n g e d one of the stolen weapons for methamphetamine in Lakosky's presen ce. Lakosky did not offer evidence to rebut the PSR's finding that he gave the fir e a r m s to the Conroys with knowledge or reason to believe that they would use t h e firearms unlawfully. In the absence of such rebuttal evidence, we cannot c o n c lu d e that it was plain error for the district court to apply the Section 2 K 2 . 1 ( b )(5 ) enhancement where the PSR provided adequate basis to do so. AFFIRMED. 3

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