US v. Angel Santillan, No. 11-4378 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4378 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANGEL SANTILLAN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:10-cr-00269-WO-1) Submitted: December 7, 2011 Decided: December 16, 2011 Before KING, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Mark A. Jones, BELL, DAVIS & PITTS, PA, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Angel following a Santillan guilty appeals plea to his thirty-month possession of a sentence firearm by an unlawful alien, in violation of 18 U.S.C. § 922(g)(5) (2006). Santillan argues calculating his that base the offense district court erred by (1) level twenty based upon his at possession of a short-barreled rifle, pursuant to the United States Sentencing applying a Guidelines two-level ( USSG ) enhancement § 2K2.1(a)(4); for possession firearm, pursuant to USSG § 2K2.1(b)(4). of and a (2) stolen We affirm. Santillan s claims of sentencing error are raised for the first time on appeal. imposed for plain Therefore, we review the sentence error. See Fed. R. Crim. P. 52(b). To establish plain error, Santillan must show that (1) an error was made; (2) the substantial fairness, error rights; is and integrity, plain; (4) or the (3) the error public error affects his seriously affects the reputation of judicial proceedings, warranting the exercise of this court s discretion to correct the error. United States v. Wilkinson, 137 F.3d 214, 223 1998) (internal the sentencing (4th omitted). Cir. In quotation context, marks and citation an error affects substantial rights if the defendant can show that the sentence imposed was longer than that to which he would otherwise be subject. United States v. Washington, 404 F.3d 834, 849 (4th 2 Cir. 2005); see also United States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996) ( [S]entencing a defendant at the wrong guideline range seriously affects the fairness, integrity, and public reputation of the judicial proceedings. ). USSG § 2K2.1(a)(4) provides a base offense level of twenty when a prohibited person commits an offense involving a firearm that includes a is described short-barreled in 26 U.S.C. rifle. § Santillan 5845(a), argues which that the district court committed plain error when it calculated his base offense level at twenty, pursuant to subsection (a)(4), absent any evidence in the record that he knew that one of the two firearms was a short-barreled rifle. We decline to impose a scienter requirement under See United States v. Saavedra, 523 F.3d 1287, 1289- § 2K2.1(a). 90 (10th Cir. 2008) ( The text of § 2K2.1(a)(5) does not contain a scienter requirement, and we will not presume such a requirement. ); United States v. Fry, 51 F.3d 543, 546 (5th Cir. 1995) ( [Section 2K2.1(a)(3)] is plain on its face and should not . . . be read to imply a scienter requirement. ). Therefore, we hold the district court did not plainly err by calculating Santillan s base offense level at twenty pursuant to § 2K2.1(a)(4). Santillan application of a next contends two-level that the district enhancement for possession 3 court s of a stolen plain firearm, error. pursuant Santillan to USSG argues § 2K2.1(b)(4), application that constituted of such an enhancement, absent evidence of his knowledge that the firearm was stolen, violates his due process rights. However, the commentary to § 2K2.1 explicitly authorizes a two-level increase regardless believe of that whether the the firearm n.8(B). Moreover, rejected constitutional enhancement. defendant was several knew stolen. other challenges or USSG circuits to had § 2K2.1, have the reason to cmt. expressly stolen gun See, e.g., United States v. Martinez, 339 F.3d 759, 762 (8th Cir. 2003) ( We now join every other circuit to have addressed this issue and explicitly hold that § 2K2.1(b)(4) does not violate the constitution. ); United States v. Murphy, 96 F.3d 846, 849 (6th Cir. 1996) (holding that stolen firearm enhancement does not violate due process); United States v. Griffiths, 41 F.3d 844, 846 (2d Cir. 1994) ( We now explicitly hold that § 2K2.1(b)(4) . . . does not violate the due process clause. ). Thus, we find that the district court did not commit plain error in applying the two-level enhancement for possession of a stolen firearm. Accordingly, we affirm the district court s judgment. We dispense with oral argument 4 because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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