                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2009

USA v. Padilla
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4682




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 07-4682
                                     ___________


                           UNITED STATES OF AMERICA

                                           v.

                             CHRISTOPHER PADILLA
                           also known as TOBY PADILLA
                     also known as CHRISTOPHER GONZALES

                                          Christopher Padilla,
                                                 Appellant
                                     ___________

                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 01-cr-00391-1)
                  District Judge: The Honorable Bruce W. Kauffman
                                     ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 30, 2008

             BEFORE: McKEE, NYGAARD, and SILER,* Circuit Judges.




                                (Filed: January 20, 2009)



       *Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court
of Appeals for the Sixth Circuit, sitting by designation.
                                       ___________

                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

       Appellant, Christopher Padilla, pleaded guilty to possession of a firearm by a

convicted felon. He was sentenced to 46 months of imprisonment, three years of

supervised release, and $100 special assessment. Trial counsel failed to file a notice of

appeal. The District Court, however, granted Appellant’s motion under 28 U.S.C. § 2255,

reinstating Padilla’s right to file a direct appeal nunc pro tunc. This appeal followed.

       On appeal Padilla argues that the District Court erred by imposing a four-level

sentencing enhancement upon him for possessing a firearm and recklessly endangering

others by firing it in the air, in violation of Pennsylvania law. He argues that because trial

counsel failed to object to the enhancement, counsel’s conduct falls below the horizon of

acceptable professional effectiveness. We will affirm.

       Counsel will not be considered ineffective if the objection to the enhancement

would have been futile. It is the Appellant’s burden to establish that the District Court

committed the plain error. To do so, he must show that (1) the District Court erred; (2)

the error was obvious under the law at the time; and (3) the error affected substantial

rights and affected the outcome of the proceedings. Johnson v. United States, 520 U.S.

461, 467 (1997).



                                              2
       We conclude that Padilla is not entitled to relief. The District Court was permitted

to rely on the undisputed facts stated in the presentence report, United States v. Siegel,

477 F.3d 87, 93 (3d Cir. 2007). Those facts, contrary to Padilla’s argument on appeal,

adequately set forth the elements of another felony offense – reckless endangerment – in

violation of Pennsylvania law. Thus the record supports the sentencing enhancement

imposed by the District Court. For the foregoing reasons, we will affirm.




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