UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4660
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ANTHONY DARBY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, Chief
District Judge. (5:10-cr-00184-MBS-9)
Submitted: March 29, 2012 Decided: April 2, 2012
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie T. Sarji, VITETTA.SARJI LAW GROUP, LLC, Daniel Island,
South Carolina, for Appellant. Julius Ness Richardson,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Anthony Darby appeals his sixty-month sentence
imposed pursuant to his guilty plea to conspiracy to make false
statements with regard to the acquisition of firearms from
licensed dealers, to engage in the business of dealing in
firearms in interstate commerce, and to travel in interstate
commerce to acquire firearms with the intent to engage in the
business of firearms without a federal license, in violation of
18 U.S.C. § 371 (2006). On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
no meritorious issues for appeal but questioning whether
enhancements to Darby’s offense level were warranted under U.S.
Sentencing Guidelines Manual §§ 3B1.1(b), 2K2.1(b)(4) (2010).
Darby was notified of his right to file a pro se supplemental
brief, but he did not do so. The Government elected not to file
a responsive brief. We affirm.
We review a district court’s application of the
Guidelines during sentencing de novo and its factual findings
for clear error. United States v. Mehta, 594 F.3d 277, 281 (4th
Cir. 2010). A district court must make relevant factual
findings at sentencing based on its view of the preponderance of
the evidence. United States v. Young, 609 F.3d 348, 357 (4th
Cir. 2010).
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Darby first argues the district court improperly
enhanced his sentence for his role in the offense under USSG
§ 3B1.1(b) because the same facts were used to establish his
base offense level under USSG § 2K1.1 and, therefore, the
enhancement constituted impermissible “double counting.”
Pursuant to USSG § 3B1.1(b), a defendant qualifies for a three-
level enhancement if he was “a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive.” USSG § 3B1.1(b).
Having reviewed the record, we conclude that the district court
did not err in imposing the enhancement.
Darby also asserts that the district court erred in
applying an enhancement for possession of a firearm with an
obliterated serial number because there was no evidence he had
knowledge of the obliterated serial number. The Guidelines
provide for a four-level enhancement if a firearm had an altered
or obliterated serial number. USSG § 2K2.1(b)(4). The
accompanying commentary specifically states that the enhancement
applies “regardless of whether the defendant knew or had reason
to believe that the firearm . . . had an altered or obliterated
serial number.” USSG §2K2.1(b)(4) cmt. n. 8(B); see also United
States v. Statham, 581 F.3d 548, 553 (7th Cir. 2009) (stating
that the defendant need not have known that the serial numbers
had been removed from the weapons for the enhancement to apply);
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United States v. Brown, 514 F.3d 256, 269 (2d Cir. 2008)
(finding that the strict liability nature of this provision
reasonably imposes the burden on the felon to ensure the number
is not obliterated, and that such a burden does not violate due
process); cf. United States v. Mobley, 956 F.2d 450, 452-53 (3d
Cir. 1992) (finding that the language of the enhancement
contained no scienter requirement, and no such requirement would
be read into the provision). We therefore find no error in the
imposition of this enhancement.
In accordance with Anders, we have examined the entire
record for potentially meritorious issues and have found none.
We affirm the judgment of the district court. This court
requires that counsel inform Darby, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Darby requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move to withdraw. Counsel’s motion must state that a copy
thereof was served on Darby. 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
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