Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-8-2008
USA v. Johnson
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3094
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3094
UNITED STATES OF AMERICA
v.
HAKEEM JOHNSON
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 05-cr-00600)
District Judge: Hon. Faith S. Hochberg
Submitted under Third Circuit LAR 34.1(a)
on June 26, 2008
Before: SLOVITER, BARRY and ROTH, Circuit Judges
(Opinion filed December 8, 2008)
OPINION
ROTH, Circuit Judge:
Hakeem Johnson appeals the judgment of sentence imposed on him by the United
States District Court for the District of New Jersey. For the reasons discussed below, we will
affirm.
I. Background and Procedural History
Because the facts are well known to the parties, we will discuss them only briefly
here.
Hakeem Johnson, a previously convicted felon, was arrested on April 2, 2005, after
police officers witnessed him displaying a handgun to a group of individuals. On August 11,
2005, Johnson was charged in a single-count indictment with possession of a firearm and
ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 2. Pursuant to a plea
agreement, Johnson pled guilty to the firearm charge in exchange for the government’s
agreement not to bring additional charges related to the gun possession. The parties
stipulated that Johnson possessed a loaded PT100 Taurus .40-caliber handgun, with serial
number SSK42617, on April 2, 2004. The parties also stipulated that Johnson had previously
been convicted of possession of a weapon, possession of a controlled substance with intent
to distribute, and aggravated assault—each of which carried a potential sentence of more than
one-year imprisonment. The Presentence Investigation Report (PSI) noted that the
November 1, 2006, U.S. Sentencing Guidelines would apply in this case and that the
applicable guideline is § 2K2.1(a)(2). That guideline fixed Johnson’s base offense level at
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twenty-four. The Probation Office suggested that, pursuant to 2K2.1(b)(4), the District Court
enhance Johnson’s base offense level by two points because the firearm was identified as
stolen. It also suggested reducing Johnson’s adjusted base offense level by three points
because he accepted responsibility. This resulted in a total offense level of twenty-three,
which, given Johnson’s criminal history, would yield an imprisonment sentence of 92 to 115
months.
The District Court held a sentencing hearing on July 9, 2007. Johnson objected to the
“stolen-gun enhancement” because the government had not proven that the gun had been
stolen either by a preponderance of evidence or by a “higher standard (as urged by Mr.
Johnson).”
The District Court evaluated copies of a Norfolk Police Department police report and
a Trace Information report prepared by the Bureau of Alcohol and Firearms (ATF) and
decided that a preponderance of the evidence supported the conclusion that the gun was
stolen. The court then applied the two-level enhancement and sentenced Johnson to ninety-
three months imprisonment and imposed a $500 fine.
Johnson appealed. He argues that the District Court erred in sentencing because it
lacked sufficient evidence to apply the stolen-gun enhancement, that it imposed an
unreasonable sentence, and that judicial factfinding by a preponderance of the evidence
during sentencing violates the Due Process Clause of the Fifth Amendment.
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II. Analysis
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Johnson’s first point of error is that the District Court’s factual determination that
the gun he possessed was stolen was not supported by the evidence. According to
Johnson, the evidence only supports the proposition that the gun was reported stolen.
At sentencing, the Government was required “to prove by a preponderance of the
evidence the facts in support of a sentence enhancement . . ..” United States v. Evans, 155
F.3d 245, 253 (3d Cir. 1998). On appeal, this Court reviews the District Court’s factual
determination whether the gun was stolen for clear error. See, e.g., United States v.
Navarro, 476 F.3d 188, 191 (3d Cir. 2007). Section 2K2.1(b)(4) provides that “[i]f any
firearm . . . was stolen, increase by 2 levels.” U.S.S.G. § 2K2.1(b)(4). This adjustment is
based on strict liability; the defendant need not have stolen the weapon or even know or
have reason to know that it was stolen. U.S.S.G. § 2K2.1(b)(4) cmt. n.8(B).
We conclude that the District Court did not commit clear error in finding that the
government had established that, by a preponderance of the evidence, the gun in
Johnson’s possession was stolen.
Johnson’s challenge to the reasonableness of his sentence also fails. Review of a
sentence for reasonableness essentially calls upon us to “ask[] whether the trial court
abused its discretion.” Rita v. United States, 127 S. Ct. 2456, 2465 (2007). The
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touchstone of reasonableness is whether the record as a whole reflects rational and
meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a). United States
v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).
Here, the record indicates that the District Court reasonably considered and applied
the relevant § 3553(a) factors in determining Johnson’s sentence. The sentence was
within the Guidelines range. Moreover, the District Court heard argument on the severity
of Johnson’s criminal record, and it engaged in a lengthy discussion with Johnson about
his criminal past, life history, and future plans. Accordingly, the District Court concluded
that a ninety-three month imprisonment sentence was fair. On the record before us, we
cannot say that the District Court abused its discretion in imposing the sentence.
Johnson’s third point of error is that judicial factfinding by a preponderance of the
evidence violates the Due Process Clause of the Fifth Amendment. We have, however,
previously foreclosed Johnson’s argument; that is, we have held that all facts relevant to
sentencing may, in fact, be found by district courts using the preponderance of the
evidence standard. See Grier, 475 F.3d at 566–68.
III. Conclusion
For the reasons set forth above, we will affirm the judgment of the District Court.
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