     Case: 09-11133     Document: 00511206759          Page: 1    Date Filed: 08/17/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 17, 2010
                                     No. 09-11133
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

TIMMOTHY ALLEN LAKOSKY,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 6:09-CR-26-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Timmothy Allen Lakosky appeals the sentence imposed following his
conviction for possession of stolen firearms and aiding and abetting.                      He
contends that the district court erred in assessing a four-level enhancement that
applies when a defendant has engaged in firearm trafficking.                     There was
sufficient evidence to support the enhancement. We AFFIRM.
        The enhancement at issue applies when “the defendant engaged in the
trafficking of firearms.”        U.S.S.G. § 2K2.1(b)(5).         An official note to this

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-11133

enhancement states that it is applicable when the defendant “[k]new or had
reason to believe that such conduct would result in the . . . transfer . . . of a
firearm to an individual . . . [w]ho intended to use or dispose of the firearm
unlawfully.” Id. app. n. 13(A)(ii).
      Lakosky does not dispute that he provided two firearms to his co-
conspirators, Jenene and Roger Conroy. He contends, though, that the evidence
did not support the finding that the Conroys intended to trade the firearms for
drugs or that Lakosky was aware of that purpose. This, however, was not his
objection in the district court. Lakosky objected to the Section 2K2.1(b)(5)
enhancement on a basis he has now abandoned. Consequently, the district court
was not given an opportunity to consider the issue and address the evidentiary
question. See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th
Cir. 2007).
      Our review of this newly raised objection is for plain error. United States
v. Salazar, 542 F.3d 139, 147 (5th Cir. 2008). To satisfy this standard, there
must be error, it must be plain, and it must affect the defendant’s substantial
rights. Id. Then, even if there is plain error, we will only exercise our discretion
to correct the error if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 148 (citation omitted).
      In applying this enhancement, the district court adopted the findings and
analysis contained in Lakosky’s presentence report (PSR) and PSR addendum.
“[A] district court may adopt the facts contained in a PSR without further
inquiry if those facts have an adequate evidentiary basis with sufficient indicia
of reliability and the defendant does not present rebuttal evidence or otherwise
demonstrate that the information in the PSR is unreliable.” United States v.
Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (quoting United States v. Cabrera,
288 F.3d 163, 173-74 (5th Cir. 2002)).
      The evidentiary basis for the PSR in this case was adequate. The PSR was
based on information obtained from the Indictment, the Factual Resume,

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                                No. 09-11133

investigative reports prepared by law enforcement, as well as personal
interviews with law enforcement agents. According to the PSR, “The defendant
provided two pistols to Jenene Findley Conroy and Roger Conroy, both of whom
were known users of methamphetamine and convicted felons, for the purpose of
them trading or exchanging the weapons for methamphetamine and marijuana.”
Lakosky’s PSR addendum did not contradict that statement. The PSR also
indicates that the Conroys, who were Lakosky’s co-conspirators, had previously
exchanged one of the stolen weapons for methamphetamine in Lakosky’s
presence.
      Lakosky did not offer evidence to rebut the PSR’s finding that he gave the
firearms to the Conroys with knowledge or reason to believe that they would use
the firearms unlawfully. In the absence of such rebuttal evidence, we cannot
conclude that it was plain error for the district court to apply the Section
2K2.1(b)(5) enhancement where the PSR provided adequate basis to do so.
      AFFIRMED.




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