NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1906
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UNITED STATES OF AMERICA
v.
NAUSHAD KHAN,
Appellant
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On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-20-cr-00040-003)
District Judge: Honorable Colm F. Connolly
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 20, 2023
Before: JORDAN, GREENAWAY, JR., and McKEE, Circuit Judges
(Filed: March 23, 2023)
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OPINION ∗
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∗
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Naushad Khan pled guilty to an offense associated with the theft of numerous
firearms. The District Court calculated his sentencing guidelines range as thirty to thirty-
seven months. Khan argued for a downward variance to time served, and the government
argued for an upward variance of seventy months. Given the severity of the crime, the
Court varied upward and sentenced Khan to sixty months. Khan contests the procedural
and substantive reasonableness of his sentence. Because the District Court committed no
procedural error and the sentence was reasonable in light of the seriousness of the
offense, we will affirm.
I. BACKGROUND
On May 31, 2020, at the height of rioting in Wilmington, Delaware following the
widely publicized death of a Minnesota man named George Floyd while in police
custody, Khan and four confederates burglarized a gun store located “in the outskirts of
the city.” (App. at 148.) In fact, they robbed it three times. All in all, the five men stole
thirty-five firearms, including three rifles and one shotgun. Surveillance video footage
showed Khan, who never entered the building, standing outside the store acting as a
lookout during one of the burglaries, and a cell tower search warrant corroborated that
Khan was near the store at the time of all the break-ins.
Khan was charged on August 13, 2020 in a superseding indictment for aiding and
abetting the theft of firearms from a federal firearms licensee, a violation of 18 U.S.C. §§
922(u), 924(i), and 2. Khan was arrested a week later and pled guilty to the charge in
September 2021. At the time of his sentencing in April 2022, only eleven of the thirty-
2
five firearms had been recovered, and four of the recovered weapons had been
cumulatively linked to many shootings, with at least six victims, two of whom were
killed. 1
At Khan’s sentencing, the Court calculated his offense level to be nineteen,
resulting in a sentencing range of thirty to thirty-seven months. 2 Khan argued for a
downward variance to time served, in light of his lack of a prior criminal history, his
work with at-risk youth, and his plans to develop a program to raise awareness about the
risks of gun violence. He also argued that his criminal conduct was an “anomaly” and he
was unlikely to ever get in trouble again, that he was remorseful, and that he accepted
responsibility for his actions. (App. at 183.) Khan personally addressed the Court,
explaining that his actions were triggered by his “own ignorance, … the George Floyd
riots … and … financial duress [he] was facing after recently being let go of [from his]
job ….” (App. at 191.)
The government then requested an upward variance to a sentence of seventy
months. It argued that the Sentencing Guidelines “just don’t take … into account” the
seriousness of the offense, which was, to the government’s knowledge, “among the most
1
The evidence did not conclusively show that the four weapons fired the rounds
that hit the six victims. Rather, it only demonstrated that the four firearms discharged
rounds at the scenes of the shootings where the victims were struck.
2
Khan objected to the Presentence Investigation Report’s failure to provide a
reduction for Khan’s minor role in the offense pursuant to U.S. Sentencing Guidelines
Manual § 3B1.2(b). The District Court overruled that objection, and it is not at issue in
this appeal.
3
egregious gun store robberies” that had ever occurred in Delaware. (App. at 197.)
According to the government, the stolen guns had “been involved in at least a dozen
shootings,” resulting in death and serious injury to several victims, and that more
shootings were “statistically … likely to happen in the future.” (App. at 196.) It also
argued that Khan manipulated the George Floyd tragedy for his personal gain, noting that
“[p]eople are literally protesting against violence, and he is injecting guns into the street
for violence to occur.” (App. at 198.) The government acknowledged that the gun
trafficking enhancement under U.S.S.G. § 2K2.1(b)(5) and the death or serious bodily
injury departure under §§ 5K2.1 and 5K2.2 did not technically apply. Regardless, it
argued that the Court should “apply an upward variance in spirit” of those departures, as
the guidelines range did not account for the guns being both trafficked and linked to
violent crimes. (App. at 199.) It asked the Court to enter a sentence of “[t]wo months a
gun[,]” for a total of seventy months. (App. at 199.)
The Court then considered the sentencing factors in 18 U.S.C. § 3553(a). It stated
that the purpose of sentencing was “to make sure that the sentence reflects the nature and
circumstances of the offense[,]” to “have the sentence accomplish deterrence” of crimes
both by Khan and the public at large, to avoid disparities in sentencing, and to promote
rehabilitation. (App. at 213.) It made particular mention of the seriousness of the offense
and its concern that the stolen guns would “all but certainly … lead to a killing” or
“serious bodily injury of multiple people.” (App. at 216.) The Court also considered the
circumstances surrounding the thefts. It noted that the rioting on that day increased the
severity of the offense because the gun store was not located where the protests were
4
occurring, and police forces were being mobilized to other locations, leaving the gun
store vulnerable to theft. The Court thus inferred that “there was, if not manipulation,
there was taking advantage of the fact that these riots were ongoing.” (App. at 219-20.)
Ultimately, the Court determined it “necessary to sentence [Khan] above the
guideline range to send a message that says this type of offense is exactly what people
can’t engage in because it is contributing to the violence.” (App. at 216.) It agreed with
the government that “the spirit of the trafficking enhancement would seem to have
applicability here,” as Khan stole the guns for monetary reasons. (App. at 222.) The
Court therefore determined that the equivalent of a five-level enhancement, resulting in a
sixty-month sentence, was appropriate. It stated that its sentence could be “th[ought] of”
as “an offense level increase per victim that we already know of,” totaling a six-level
enhancement, reduced by one level to reflect Khan’s positive characteristics, resulting in
“ten months [sentenced] per victim” of the guns linked to the burglaries. (App. at 223-
24.)
Khan timely appealed his sentence.
II. DISCUSSION 3
A. Khan’s Sentence is Procedurally Reasonable
We must first “ensur[e] that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
3
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review
a district court’s sentence for procedural and substantive reasonableness under an abuse-
of-discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en
5
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence – including an explanation for any deviation from the Guidelines range.”
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). Sentencing courts are to engage in a three-step
process: (1) correctly calculate the defendant’s advisory guidelines range; (2) rule on any
motions for departure; and (3) exercise its discretion in applying the § 3553(a) factors.
United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010).
The District Court here did precisely what our precedent requires. Khan does not
contest that the Court correctly calculated his guidelines range at thirty to thirty-seven
months, and neither party sought a departure. What Khan contends is that his sentence is
procedurally unreasonable because the Court abused its discretion in the application of
the § 3553(a) factors. He makes two arguments in support of that position. First, he says
that the District Court “impermissibly relied upon the government’s argument that the
trafficking enhancement of U.S.S.G. § 2K2.1(b)(6)(B) applied ‘in spirit.’” 4 (Opening Br.
at 21.) Second, he argues that he was sentenced “under the mistaken belief that firearms
stolen in the burglary were ‘certainly going to lead to a killing … [or] serious bodily
injury of multiple people.’” (Opening Br. at 23 (citing App. at 216).)
banc). Khan, as the party challenging the procedural and substantive reasonableness of
his sentence, bears the burden of showing unreasonableness. Id.
4
Khan cites to U.S.S.G. § 2K2.1(b)(6)(B), but the government argued that the
spirit of § 2K2.1(b)(5) should apply.
6
Because he failed to raise either of those arguments in the District Court, plain
error review applies. 5 It is Khan’s burden to demonstrate such error, and he has failed to
do so. That alone is fatal to his position. But even if plain error review did not apply, the
District Court did not abuse its discretion in considering the “spirit” of § 2K2.1(b)(5), the
gun trafficking enhancement. On the contrary, its opinion is exceptionally thorough. The
Court made clear that, while it did not actually apply the enhancement, the severity of the
burglaries justified an upward variance to capture the “spirit” of the enhancement. The
theft of firearms for pecuniary gain, which subsequently were linked to several shootings,
was obviously something the Court could consider. See Pepper v. United States, 562
U.S. 476, 489 (2011) (“Both Congress and the Sentencing Commission … expressly
preserved the traditional discretion of sentencing courts to ‘conduct an inquiry broad in
scope, largely unlimited either as to the kind of information [they] may consider, or the
source from which it may come.’”) (quoting United States v. Tucker, 404 U.S. 443, 446
(1972)); cf. United States v. Larkin, 629 F.3d 177, 193-94 (3d Cir. 2010) (holding that the
district court properly analogized to a post-offense amendment to the sentencing
5
Unpreserved claims that a district court committed a procedural error are
reviewed for plain error. United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014)
(en banc). “It is a defendant’s burden to establish plain error.” United States v. Womack,
55 F.4th 219, 231 (3d Cir. 2022). “To satisfy this burden, a defendant must prove that:
(1) the Court erred; (2) the error was obvious under the law at the time of review; and (3)
the error affected substantial rights, that is, the error affected the outcome of the
proceedings.” Id. “If all three elements are established, the Court may … exercise its
discretion to award relief … only … where the defendant is ‘actually innocent’ or the
error ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
7
guidelines that could not be applied against the defendant due to the ex post facto clause
when it applied a five-level upward departure on the grounds that the existing guidelines
did not adequately account for the severity of the crime).
Additionally, the District Court’s finding that the stolen guns were “all but
certainly … going to lead to a killing … [or] to serious bodily injury of multiple people”
is not clearly erroneous. (App. at 216.) Only eleven of the thirty-five stolen firearms had
been recovered by the time of Khan’s sentencing, and four of those eleven weapons have
been linked to multiple shootings, resulting in injuries and deaths. Khan argues that those
weapons “[t]heoretically … could have been possessed lawfully and used in self-defense
or for the defense of others.” (Reply Br. at 5.) Such a theoretical possibility (and a
highly unlikely one at that) does not result in clear error. See United States v. Grier, 475
F.3d 556, 570 (3d Cir. 2007) (en banc) (“A finding is clearly erroneous when, although
there is evidence to support it, the reviewing body on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” (cleaned up) (quoting
Concrete Pipe & Prods of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508
U.S. 602, 622 (1993))). Given that some of the stolen firearms have already been linked
with shootings, it was not clearly erroneous to conclude that the remaining weapons
would probably be involved in more gun violence. See id. at 568 (holding that the burden
of proof for facts relevant to sentencing is a preponderance of the evidence).
B. Khan’s Sentence is Substantively Reasonable
We turn next to the substantive reasonableness of Khan’s sentence. “The
touchstone of reasonableness is whether the record as a whole reflects rational and
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meaningful consideration of the factors enumerated in § 3553(a).” Grier, 473 F.3d at
571. We may not “presume that a sentence is unreasonable simply because it falls
outside the advisory Guidelines range.” Tomko, 562 F.3d at 567. Nor may we conclude
that a sentence is unreasonable because we might conclude that a different sentence was
appropriate. Gall, 552 U.S. at 51. Rather, a sentence is unreasonable if “no reasonable
sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided.” Tomko, 562 F.3d at 568.
Khan argues that his sentence is unreasonable because the District Court did not
properly take into account the significance of George Floyd’s death. But the District
Court did discuss that circumstance and concluded that Khan took advantage of rioting to
commit a crime for financial gain. Khan also argues that mitigating factors – his lack of
criminal history, acceptance of responsibility, and demonstration of genuine remorse –
should have been afforded greater weight. Yet the District Court expressly considered
those positive characteristics when it fashioned a sufficient sentence. Finally, Khan
argues that a sentence of thirty months “would serve the same protective, rehabilitative,
and deterrent effects” as the sixty-month sentence he received. (Opening Br. at 27.) That
argument fails too, as Khan fails to demonstrate that no reasonable sentencing court
would have imposed a sixty-month sentence for aiding and abetting burglaries of a gun
store on three separate occasions on the same day.
The District Court conducted a detailed analysis and reasonably determined that
60 months was a sentence sufficient, but not greater than necessary, to satisfy the aims of
federal sentencing. There is no error in that.
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III. CONCLUSION
For the foregoing reasons, we will affirm.
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