Not overruled or negatively treated on appealinfoCoverage
United States Court of Appeals, Second CircuitMar 23, 2010
370 Fed. Appx. 199 (2d Cir. 2010)

No. 08-5581-cr.

March 23, 2010.

Appeal from the United States District Court for the Eastern District of New York (Bianco, J.). ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

David M. Samel, New York, N.Y., for Defendant-Appellant.

Amir H. Toossi and David C. James, Assistant United States Attorneys, for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.



Defendant-appellant Darnelle Thompson appeals from a judgment of the United States District Court for the Eastern District of New York (Bianco, J.), entered November 6, 2008, convicting defendant, following a guilty plea, of one count of possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced defendant principally to a term of 84 months' imprisonment. We assume the parties' familiarity with the underlying facts and procedural history of this case.

Defendant, through counsel, challenges the district court's decision at sentencing to impose a two-level enhancement to defendant's offense level for possessing a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(4)(A). We review the sentence imposed by the district court for both procedural and substantive reasonableness. United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006). "Reasonableness review is akin to review for abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds of allowable discretion[,] . . . committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact." United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007) (internal quotation marks omitted). A district court commits procedural error, when, for instance, it "fails to calculate the Guidelines range" or "makes a mistake in its Guidelines calculation." United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). "In this context, we review factual findings for clear error and the court's interpretation of the Sentencing Guidelines de novo." United States v. Thompson, No. 07-0260 (E.D.N.Y. Nov. 4, 2008).

The sole issue raised in this appeal is whether the district court committed procedural error when it imposed the two-level stolen firearm enhancement. Defendant argues that the enhancement violates due process principles and Congressional intent because it does not require proof that the defendant knew that the firearm was stolen. We need not address this argument, however, because the district court made clear that its sentence, which was "based on the nature of th[e] offense, in light of [defendant's] long criminal history . . . would be the same, regardless of whether or not [the] enhancement were to apply in this case." Accordingly, because "the record indicates clearly that the district court would have imposed the same sentence" regardless of whether or not the enhancement applies, any claimed error (assuming that there was error), "may be deemed harmless." United States v. Jass, 569 F.3d 47, 69 (2d Cir. 2009) (internal quotation marks omitted); see also United States v. Bermingham, 855 F.2d 925, 934 (2d Cir. 1988) ("As long as the sentencing judge is satisfied that the same sentence would have been imposed no matter which of the two guideline ranges applies, the sentence should stand.").

We have considered defendant's remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.