UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4327
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTWAIN LAMAR DENNIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00226-FL-1)
Submitted: October 23, 2012 Decided: December 3, 2012
Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antwain Lamar Dennis pled guilty to unlawful
possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g)(1) (2006) and was sentenced to eighty-four months of
imprisonment. On appeal, Dennis alleges that the district court
erred when it imposed an upward departure sentence. For the
reasons that follow, we affirm.
As clearly discussed by the district court at the
sentencing hearing, it departed upward by three levels under
U.S. Sentencing Guidelines Manual (“USSG”) § 5K2.6, p.s.,
because Dennis used the gun at issue to threaten his girlfriend
and discharged the gun in a residence where other women and
children were present. These facts were extant in Dennis’
presentence report; the court found, however, that Dennis’
statements to police, that he found the gun in the backyard and
that the gun accidently discharged after he fell over a couch,
were simply incredible. See United States v. Terry, 916 F.2d
157, 162 (4th Cir. 1990) (“The burden is on the defendant to
show the inaccuracy or unreliability of the presentence
report.”). We conclude that the district court’s factual
findings regarding his use of the gun were not procedurally
erroneous. Gall v. United States, 552 U.S. 38, 49-51 (2007).
Moreover, in light of these factual findings, the district
court's upward departure was reasonable under USSG § 5K2.6, p.s.
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Accordingly, we affirm. 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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