2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-28-2011

USA v. Naeem Cotton

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2553

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Naeem Cotton" (2011). 2011 Decisions. Paper 1739.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/1739
1 

 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

____________ 

 No. 10-2553 

 ____________ 

UNITED STATES OF AMERICA 

v. 

NAEEM COTTON, 

 Appellant

 ____________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 (D.C. Crim. No. 1-09-cr-00563-001) 

 District Judge: Honorable Renee M. Bumb 

 ____________ 

 Submitted Under Third Circuit L.A.R. 34.1(a) 

 February 9, 2011 

 Before: JORDAN, GREENAWAY, JR. and WEIS, Circuit Judges. 

(Filed: February 28, 2011) 

 ____________ 

 OPINION 

____________ 

WEIS, Circuit Judge. 

 Defendant pleaded guilty to a one-count indictment charging him with 

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). 

Finding that the gun had been stolen, the District Court added an enhancement under 
2 

U.S.S.G. § 2K2.1(b)(4)(A). The resulting Guidelines range was 92 to 115 months, based 

on a total offense level of 23 and Criminal History Category VI. The District Court 

sentenced defendant to a 105-month term of imprisonment. 

 On appeal, defendant vigorously argues that there was inadequate proof 

that the firearm had, in fact, been stolen. We are not persuaded that the District Court’s 

finding on this point was clearly erroneous. See United States v. Sanchez, 507 F.3d 532, 

538-39 (7thCir. 2007) (affirming two-level sentence enhancement based upon police 

report of stolen firearm, where other indicia of reliability were present); see also United 

States v. Bates, 584 F.3d 1105, 1108-10 (8th Cir. 2009) (same, where, in absence of 

police report, district court relied upon testimony of gun’s prior owner as to 

circumstances of its theft). 

 In addition, the District Court stated that, even if it “had . . . not assessed 

the two point adjustment for . . . the firearm being stolen, [it] nonetheless would have 

varied upward to the [105-month] sentence” based on the § 3553(a) factors. See, e.g., 

United States v. Smalley, 517 F.3d 208, 214 n.6 (3d Cir. 2008) (“[I]f a district court 

wishes to provide for the possibility that a different Guidelines calculation applies by 

handing down an alternative sentence, it must still begin by determining the correct 

alternative Guidelines range and properly justify the chosen sentence”). 

 Defense counsel presented a lengthy and thoughtful argument on behalf of 

his client. The record before us reflects the District Court’s considered and extensive 
3 

analysis of the § 3553(a) factors. We find no significant procedural or substantive error 

in the sentencing and, therefore, defer “‘to the . . . determination that the § 3553(a) 

factors, on a whole,’ justify the sentence.” United States v. Tomko, 562 F.3d 558, 568 

(3d Cir. 2009) (citation omitted). 

 Accordingly, we will affirm the Judgment of the District Court.