                                                                             FILED
                           NOT FOR PUBLICATION                               APR 05 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 08-10457

             Plaintiff–Appellee,                 D.C. No. 3:08-cr-00393-WHA

  v.
                                                 MEMORANDUM *
DONTAE ALLEN,

             Defendant–Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                           William H. Alsup, Presiding

                     Argued and Submitted November 3, 2009
                            San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

       Dontae Allen appeals his sentence imposed after he pled guilty to possession

of a firearm by a felon and unlawful possession of ammunition by a felon, both in

violation of 18 U.S.C. § 922(g)(1). Allen contends that the district court

committed error in finding that he had possessed the firearm in connection with

another felony offense and consequently applying a four-level sentencing


       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
enhancement pursuant to section 2K2.1(b)(6) of the United States Sentencing

Guidelines. With the four-level enhancement, the upper limit of the Guidelines

range for Allen’s sentence was 87 months, a 30-month increase over what it would

have been without the enhancement. The district court ultimately sentenced Allen

to an 84-month term of imprisonment.

       Then, as now, Allen strenuously denied any involvement in the felony

offense. To trigger the enhancement the Government was required to prove by a

preponderance of the evidence that Allen possessed a firearm “in a manner that

permits an inference that it facilitated or potentially facilitated . . . [his] felonious

conduct.” United States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994); see also

United States Sentencing Guidelines § 2K2.1(b)(6). The Government failed to

carry its burden. Although there was some evidence against Allen, all of it was

highly circumstantial and did not demonstrate that it was more likely than not that

Allen was involved in the reported shooting. The district court’s decision to the

contrary was clearly erroneous.

       This error was harmless, however, because the district judge took the

precaution of making it clear on the record that, if the enhancement did not apply,

he would still depart upward to an 84-month sentence. He listed many reasons for

the upward departure, including that this was Allen’s third firearm offense, and


                                             2
that Allen was an incorrigible recidivist who had returned to crime after leniency in

prior sentences. It is therefore abundantly clear that any error in including the

enhancement in the Guideline calculation made no difference to the sentence

reached by the district court. The 84-month sentence accordingly was not

“imposed as a result of an incorrect application of the Guidelines,” and there is no

reason to overturn the sentence. Williams v. United States, 503 U.S. 193, 202-03

(1992) (internal quotation marks omitted).

      The district court committed no procedural error in its alternative imposition

of an upward departure. We conclude that the 84-month sentence so imposed was

substantively reasonable. Moreover, the district court sufficiently articulated its

reasons for departing upward and reaching the sentence it did. We therefore affirm

the sentence. See United States v. Carty, 520 F.3d 984, 996 (9th Cir.) (en banc)

(affirming sentence where sentencing court committed no significant procedural

error and sentence imposed was not substantively unreasonable), cert. denied, 128

S. Ct. 2491 (2008).

      AFFIRMED.




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