1

12

- 1837

- cr United States v. Vassar
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY OR DER DO NOT HAVE PREC EDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AF TER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COUR T , A PARTY MUST CITE EI THER THE F EDERAL A PPENDIX OR AN ELECTR ONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORD ER MUST SERVE A COPY OF IT ON ANY PARTY N OT REPRESENTED BY COUNSEL . At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16 th day of October , two thousand thirteen.
PRESENT:
B ARRINGTON D. P

ARKER , P ETER W. H ALL , R AYMOND J. L OHIER , J R
. ,

Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x U NITED S TATES OF A MERICA ,

Appellee ,

- v.
- No. 12

- 1837

- cr T RAVIS A. V

ASSAR , AKA S EALED D EFENDANT , Defendant

- Appell ant

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x FOR DEFENDANT

- APPELLANT : Mary Anne Wirth , Bleakley Platt & Schmidt, LLP , White Plains , NY

. FOR APPELLEE : Paula Ryan Conan , Assistant United States Attorney , of Counsel , for Richard S. Hartunian , United States Attorney, United States Attorney’s Office for the Northern District of New York, Syracuse , NY.2

Appeal from the judgment of conviction , entered on March 1 , 2012, by the United States
District Court for the Northern District of New York ( D’Agostino , J

. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED,
AND DECREED that the judgment of the d istrict court is AFFIRMED

. D efendant

- Appellant Travis A. Vassar appeals from the March 1, 2012 judgment imposing a
sentence of 57 months ’ imprisonment following his plea of guilty to possess ion of a firear m in or affecting commerce while having been previously convicted of a felony offense, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)

. We assume the parties’ familiarity with the underlying facts and procedural history in this case.
Vassar contends tha t the district court ’s decision to impose a two

- level stolen firearm
enhancement under U.S.S.G. § 2K2.1(b)(4) , without conducting an evidentiary hearing, was procedurally and substantively unreasonable given his grandmother’s sworn statement that the
firea rm he possessed was not stolen and the government’s failure to introduce sworn testimony or evidence to the contrary. We review for clear error the district court’s underlying findings of fact with respect to sentencing. United States v. Cossey , 632 F.3d 82, 86 (2d Cir. 2011). The district court need only find the facts to support the imposition of an enhancement by a preponderance of the
evidence , United States v. Carty , 264 F.3d 191, 194 (2d Cir. 2001) , and , under these circumstances, it
satisfies its obligation to make specific factual findings when it adopts the findings in the Pre

Sentence Report (“PSR”) , United States v. Molina , 356 F.3d 269, 275 (2d Cir. 2004 )

. “ A criminal defendant has no right to demand an evidentiary hearing to present his own witnesses at sentencing , ” United States v. Morrison , 153 F. 3 d 34, 54 (2d Cir. 1998), and forfeits the right to claim on appeal that the district court should have held a hearing where he failed to request one , see United
States v. Collado , 106 F.3d 1097, 1 104

- 05 (2d Cir. 1997) , overruled on other grounds by United States v. Ortiz , 143 F.3d 728 (2d Cir. 1998) ; see also Fed. R. Crim. P. 51(b). While a d istrict c ourt is not required to3

hold full

- blown evidentiary hearings to address sentencing disputes , it mu st “afford the defenda nt

some opportunity to rebut the [g] overnment’s allegations.” United States v. Slevin , 106 F.3d 1086, 1091 (2d Cir. 1996) (quoting United States v. Eisen , 974 F.2d 246, 269 (2d Cir. 1992))

. First, we note that Vassar’s counsel suff iciently preserved his right to appeal the stolen
firearm enhancement by arguing at sentencing that the evidence was insufficient to support a finding
that the firearm was stolen

. United States v. Diaz , 176 F.3d 52, 117 (2d Cir. 1999) (“In order to
preser ve an issue for appeal, a defendant must ei ther object to the presentence report or . . . raise the objection at the time of sentencing.”) (internal quotation marks omitted)

. Second , the district court did not clearly err in finding that the firearm was stolen based on
the statements in the PSR. According to the PSR , Vassar was arrested on November 5, 2009 following a high

- speed police chase involving a car owned by his grandmother, Ada Vassar . The following day, New York State Police (“NYSP”) Troopers interviewed Ada Vassar at her home. During the interview, she acknowledge d having loaned her car to Vassar’s girlfriend. Upon learning
her car had been “totaled,” she “ checked her bedroom ” and discovered that the firearm involved in these proceedings w as missing from her gun rack. Thereafter, she report ed the firearm as stolen , thus triggering the NYSP’s investigation . This investigation led to Vassar’s arrest and subsequent guilty plea in September 2011

. The fact that the firearm was stolen as well as the resulting two

- level
sentence enhancement were discussed in the government’s oral presentation during the change of plea hearing and were included in the government’s written Offer of Proof. Sometime in October 2011, d uring the pre

- sentence investiga tion, Vassar informed his probation officer that he had not stolen the firearm and that his grandmother had inherited it from his grandfather and had later gifted it to him

. Subsequently, Ada Vassar prepared a sworn statement
in which she denied having re ported the firearm as stolen and said that the firearm was not stolen
but was in fact an inheritance gift given to Vassar by his late grandfather. Vassar adopted his4

grandmother’s version of events when given the opportunity to address the court during hi s sentencing proceedings

. At sentencing, although the district court did not conduct a full

- blown evidentiary hearing, it properly affor ded Vassar the opportunity to rebut the g overnment’s contention s surrounding the
firearm by considering hi s grandmother’ s sworn statement, hearing the parties’ arguments , and allowing Vassar to address the c ourt at length. While the district c ourt understood a grandmother’s
motivation to prepare a sworn statement exonerating her grandson on the eve of sentencing , the
distr ict court did not clearly err in giving more weight to her original statement

. T he record is clear
that but for Ada Vassar’s initial claim that the firearm was missing, the NYSP would not have begun an investigation into the matter
. Additionally, Vassar’ s argument concerning alleged discrepancies between the government’s written O ffer of P roof and the facts included in the PSR is without
merit , as both indicate that Ada Vassar’s report triggered the police investigation

. Based on the
record before the di strict court and give n the opportunity afforded Vassar to challenge the government’s allegation, there is no basis to conclude that the district court committed a clear error in determining that the firearm was stolen.
Vassar also contends that his counsel was ineffective in failing both to request an evidentiary hearing and to remind the district court of his grandmother’s sworn statement

. In general, we have
a “ baseline aversion to resolving ineffect iveness claims on direct review. ” United States v. Sal ameh , 152 F.3d 88, 161 (2d Cir. 1998)

. T he Supreme Court has also indicated that “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance

. ”
Massaro v. United States , 538 U.S. 500, 504 (2003 ) . Nevertheless, we have entertained such claims on direct appeal, “w hen their resolution is beyond any doubt or to do so would be in the interest of justice. ” United States v. Khedr , 343 F.3d 96, 100 (2d Cir. 2003) (internal quotation marks omitted) . I n this case, even if his counsel’s performance was somehow defective, Vassar cannot demonstrate that5

“the deficient performance prejudiced [his] defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). As stated above, Vassar was not entitled to an evidentiary hearing as of right, Morrison , 153
F. 3 d at 54, and was afforded the opportunity to challenge the gove rnment’s evidence at sentencing,
Slevin , 106 F.3d at 1091. Additionally , the district court fully considered Ada Vassar’s sworn statement when determining whether Vassar had stolen the firearm

. Vassar’s ineffective assistance
of counsel claim is without merit.
Vassar was permitted to file a supplemental pro se brief , which was received after the case was
submitted

. In it, he again challenges t he imposition of the two

- level sentence enhancement under U.S.S.G. § 2K2.1(b)(4)

. He also argues for a base offens e level reduction in light of his assertion that the firearm was for hunting purposes only and that he had no criminal intent when he sold it

. In addition, Vassar contends that he was misled by his counsel with respect to the two

- level sentence
enhancement and his base offense level calculation upon pleading guilty. We have carefully
considered these arguments and all remaining arguments and find them to be without merit.
For the foregoing reasons, we AFFIRM the judgment of conviction of the district c ourt , entered on March 1 , 2012

. FOR THE COURT, Catherine O’Hagan Wolfe, Clerk of Court