                                                 Filed:   July 29, 2009

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 07-4809
                         (3:06-cr-00066-FDW)


UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

           versus



GREGORY LASHAWN MOFFITT,

                                                Defendant - Appellant.


                              O R D E R


     The court amends its opinion filed July 16, 2009, as

follows:

     On page 2, the third sentence of the second paragraph is

amended to read, AThe resulting sentencing range was seventy to

eighty-seven months.@

                                          For the Court - By Direction



                                               /s/ Patricia S. Connor
                                                     Clerk
                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4809


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GREGORY LASHAWN MOFFITT,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00066-FDW)


Submitted:    June 26, 2009                 Decided:   July 16, 2009


Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Peter Adolf, Emily
Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant.          Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              This case is before the court after resentencing on

remand.      Gregory Lashawn Moffitt appealed the 102-month sentence

imposed after he pled guilty to one count of possession of a

firearm after having been convicted of a crime punishable by

more than one year of imprisonment, in violation of 18 U.S.C.

§ 922(g)      (2006).      In     our    prior       decision      in    this    case,    we

concluded that the district court erred in imposing a four-level

enhancement      to     Moffitt’s        offense       level       pursuant        to   U.S.

Sentencing Guidelines Manual (USSG) § 2K2.1(b)(6) (2006) because

the firearm was used in connection with another felony offense.

We   remanded    to     allow    the    district       court    to      consider    whether

there   was     any    other     basis       to    impose    the     enhancement.         We

declined to consider Moffitt’s other argument that the court

erred   in    imposing     a     two-level         enhancement       pursuant      to   USSG

§ 2K2.1(b)(4) because the firearm was stolen.

              On remand, the district court concluded that the four-

level enhancement pursuant to § 2K2.1(b)(6) was not appropriate.

Moffitt’s      total     offense       level       without   this       enhancement      was

recalculated at twenty-three, and his criminal history category

remained      category     IV.         The     resulting     sentencing         range    was

seventy to eighty-seven months.                     The district court sentenced

Moffitt to eighty-seven months of imprisonment.



                                               2
            In   his     objections     to       the    presentence       report    (PSR),

Moffitt first stated a general objection under United States v.

Booker, 543 U.S. 220 (2005), based on his assertion that the

Fourth     Circuit     had    created        a    mandatory       Guidelines        system

contrary to Booker.           He then argued that judicial fact-finding

under this mandatory system implicated his confrontation rights

as articulated in Crawford v. Washington, 541 U.S. 36 (2004).

Moffitt also asserted that the enhancement for a stolen firearm

was improper because the evidence that the gun was stolen was

insufficient to support the enhancement.

            At sentencing, the district court concluded that the

evidence     was     sufficiently        reliable           to        establish     by    a

preponderance of the evidence that the firearm was stolen, and

overruled Moffitt’s objection.               On appeal, Moffitt asserts that

the district court erred in enhancing his offense level for a

stolen firearm.          He also repeats his claims that the Fourth

Circuit    had     created    a   mandatory            Guidelines      system     and    his

confrontation claim based on Crawford, but offers no argument in

support    of    those      issues.     The        Government         responds,     urging

affirmance.

            This court reviews a district court’s factual findings

at sentencing for clear error and its legal determinations de

novo.      United States v. Daughtrey, 874 F.2d 213, 217-18 (4th

Cir.    1989).       This    deferential          standard       of    review     requires

                                         3
reversal only if this court is “left with the definite and firm

conviction that a mistake has been committed.”                            United States v.

Stevenson,       396     F.3d       538,      542     (4th       Cir.     2005)     (quoting

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).                                   Moffitt

argues    that    the    evidence          before    the     district       court    was     not

sufficiently reliable to support its conclusion that the firearm

he possessed was stolen.                  We find that this argument is without

merit.     Following Booker, a sentencing court continues to make

factual      findings          concerning           sentencing           factors        by     a

preponderance of the evidence.                      United States v. Morris, 429

F.3d 65, 72 (4th Cir. 2005).                      A sentencing court may consider

any   evidence     at     sentencing         that    “has        sufficient       indicia     of

reliability.”           USSG    §    6A1.3(a).            This    court    has    “construed

various Supreme Court decisions as ‘recogniz[ing] a due process

right to be sentenced only on information which is accurate.’”

United States v. Nichols, 438 F.3d 437, 440 (4th Cir. 2006)

(quoting United States v. Lee, 540 F.2d 1205, 1211 (4th Cir.

1976)).

            Moffitt acknowledges that the rules of evidence do not

apply at sentencing and that the district court may consider

hearsay    evidence      in     making       its    factual       determinations.            The

district     court      considered          the     PSR    and     a     police     officer’s

testimony     describing            the     information          obtained       through      the

National    Crime      Information          Center    (NCIC)       and    the     ATF   serial

                                               4
number    trace      of    the    firearm.          The    court     specifically       took

judicial notice of the NCIC database and its reliability and

accuracy    and      concluded       that     the    evidence       was    sufficient    to

establish     that        the    firearm      was    stolen.         Because    Moffitt’s

assertions that the information was not sufficiently reliable

are   based    on     conjecture,        we     find      that     the    district     court

properly overruled his objection to this enhancement.

            Finally, Moffitt states, in summary fashion, that the

district court violated his Fifth and Sixth Amendment rights by

making     factual        findings      based       on    a   preponderance       of    the

evidence, and that his Confrontation Clause rights were violated

because the Fourth Circuit has created a mandatory Guidelines

system that gives rise to his Fifth and Sixth Amendment rights.

Moffitt states that he wishes only to preserve these claims for

further    appellate        review      and    we    thus     do    not    consider     them

further.

            Accordingly,           we    affirm          Moffitt’s       sentence.       We

dispense      with    oral       argument       because       the    facts     and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                                 AFFIRMED




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