United States v. Moffitt , 337 F. App'x 280 ( 2009 )

Filed: July 29, 2009
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4809
(3:06-cr-00066-FDW)
UNITED STATES OF AMERICA,
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 to allow the district court to consider whether
there was any other basis to impose the enhancement. We
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 four-
level 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. He also repeats his claims that the Fourth
Circuit had created a mandatory Guidelines system and his
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. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th
Cir. 1989). This deferential standard of review requires
3
reversal only if this court is “left with the definite and firm
conviction that a mistake has been committed.” United States v.
Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). Moffitt
argues that the evidence before the district court was not
sufficiently reliable to support its conclusion that the firearm
he possessed was stolen. We find that this argument is without
merit. Following Booker, a sentencing court continues to make
factual findings concerning sentencing factors by a
preponderance of the evidence. United States v. Morris, 429
F.3d 65, 72 (4th Cir. 2005). A sentencing court may consider
any evidence at sentencing that “has sufficient indicia of
reliability.” USSG § 6A1.3(a). This court has “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 evidence in making its factual determinations. The
district court considered the PSR and a police officer’s
testimony describing the information obtained through the
National Crime Information Center (NCIC) and the ATF serial
4
number trace of the firearm. The court specifically took
judicial notice of the NCIC database and its reliability and
accuracy and concluded that the evidence was sufficient to
establish that the firearm was stolen. 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 appellate review and we thus do not consider them
further.
Accordingly, we affirm Moffitt’s sentence. 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
5