FILED
NOT FOR PUBLICATION APR 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10457
Plaintiff–Appellee, D.C. No. 3:08-cr-00393-WHA
v.
MEMORANDUM *
DONTAE ALLEN,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, Presiding
Argued and Submitted November 3, 2009
San Francisco, California
Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.
Dontae Allen appeals his sentence imposed after he pled guilty to possession
of a firearm by a felon and unlawful possession of ammunition by a felon, both in
violation of 18 U.S.C. § 922(g)(1). Allen contends that the district court
committed error in finding that he had possessed the firearm in connection with
another felony offense and consequently applying a four-level sentencing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
enhancement pursuant to section 2K2.1(b)(6) of the United States Sentencing
Guidelines. With the four-level enhancement, the upper limit of the Guidelines
range for Allen’s sentence was 87 months, a 30-month increase over what it would
have been without the enhancement. The district court ultimately sentenced Allen
to an 84-month term of imprisonment.
Then, as now, Allen strenuously denied any involvement in the felony
offense. To trigger the enhancement the Government was required to prove by a
preponderance of the evidence that Allen possessed a firearm “in a manner that
permits an inference that it facilitated or potentially facilitated . . . [his] felonious
conduct.” United States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994); see also
United States Sentencing Guidelines § 2K2.1(b)(6). The Government failed to
carry its burden. Although there was some evidence against Allen, all of it was
highly circumstantial and did not demonstrate that it was more likely than not that
Allen was involved in the reported shooting. The district court’s decision to the
contrary was clearly erroneous.
This error was harmless, however, because the district judge took the
precaution of making it clear on the record that, if the enhancement did not apply,
he would still depart upward to an 84-month sentence. He listed many reasons for
the upward departure, including that this was Allen’s third firearm offense, and
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that Allen was an incorrigible recidivist who had returned to crime after leniency in
prior sentences. It is therefore abundantly clear that any error in including the
enhancement in the Guideline calculation made no difference to the sentence
reached by the district court. The 84-month sentence accordingly was not
“imposed as a result of an incorrect application of the Guidelines,” and there is no
reason to overturn the sentence. Williams v. United States, 503 U.S. 193, 202-03
(1992) (internal quotation marks omitted).
The district court committed no procedural error in its alternative imposition
of an upward departure. We conclude that the 84-month sentence so imposed was
substantively reasonable. Moreover, the district court sufficiently articulated its
reasons for departing upward and reaching the sentence it did. We therefore affirm
the sentence. See United States v. Carty, 520 F.3d 984, 996 (9th Cir.) (en banc)
(affirming sentence where sentencing court committed no significant procedural
error and sentence imposed was not substantively unreasonable), cert. denied, 128
S. Ct. 2491 (2008).
AFFIRMED.
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