                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 10-4111
                                  ________________

                           UNITED STATES OF AMERICA

                                           v.

                           ANTOINE DOBSON, a/k/a ANT

                                   Antoine Dobson,
                                                       Appellant
                                        ______

                    On Appeal from the United States District Court
                             for the District of New Jersey
                        (D.C. Criminal No. 2-08-cr-00779-001)
                     District Judge: Honorable Peter G. Sheridan
                                         ______

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 16, 2011
                                      ______

                   Before: FUENTES, CHAGARES, Circuit Judges,
                               and RESTANI,* Judge

                               (Filed: December 7, 2011)

                                        ______

                              OPINION OF THE COURT
                                      ______



      *
        Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
RESTANI, Judge.

       Appellant Antoine Dobson appeals his conviction for, inter alia, disposing of a

firearm and ammunition to a person convicted of a felony, as well as his sentence of

forty-five months imprisonment.1 Dobson alleges the District Court erred by, 1)

admitting irrelevant and unfairly prejudicial evidence at trial, 2) providing improper jury

instructions, which permitted the government to prejudicially vary its proof at trial, 3)

enhancing his sentence for abuse of public trust, 4) enhancing his sentence for providing

the weapon with the belief it would be used in a felony, and 5) unreasonably sentencing

him. For the following reasons, we will affirm the District Court’s judgment.

       Because we write for the parties, we recount only the essential facts and procedural

history.2 We presume familiarity with our prior decision. United States v. Dobson, 380

F. App’x 170 (3d Cir. 2010). In November 2007, Dobson—a Deputy U.S. Marshal at the

time—acquired a .40 caliber Glock 27, for which he had received authorization but had

not yet been trained to carry, through his position in the United States Marshals Service.


       1
           Dobson does not appeal his conviction for perjury.
       2
         Dobson contends that his acquittal on three of four counts of perjury may be used to
conclude that certain facts were not proven by the Government at trial. We previously rejected a
permutation of this argument. Last year, Dobson argued that his acquittal on the three counts of
perjury demonstrated that “‘[t]here can be no doubt that the [Government] had failed to establish
beyond a reasonable doubt a fundamental allegation of its case—that Langforddavis had
possession of Mr. Dobson’s newly purchased firearm on January 5, 2008’ because the jury
‘completely rejected the allegation in two counts of the indictment.’” United States v. Dobson,
380 F. App’x 170, 179 (3d Cir. 2010) (quoting Br. of Appellee 17). We determined that there
was “no requirement that a jury’s verdict be consistent,” id. (quoting United States v. Mussare,
405 F.3d 161, 167 (3d Cir. 2005)), and “[i]t was not the province of the courts to ‘inquir[e] into a
jury’s thought process,’” id. (quoting United States v. Powell, 469 U.S. 57, 67 (1984)).

                                                 2
At some point prior to January 18, 2008, Larry Langforddavis, Dobson’s friend and a

convicted felon, acquired Dobson’s Glock 27, perhaps multiple times. On the evening of

January 4, 2008, Dobson was celebrating his birthday at the Jersey Girls Entertainment

Club. Langforddavis entered the club without being searched because he had been

incorrectly introduced to the club’s employees as a law enforcement officer. Dobson

sustained injuries after being assaulted outside the club on the morning of January 5.

Dobson and Langforddavis spoke briefly before Langforddavis got into a car and chased

after the assailants. Langforddavis returned twenty minutes later, proclaiming that he

“got them” and had “sprayed the vehicle.” Dobson replied that he “wanted his gun.”

Langforddavis later went to visit Dobson in the hospital, at which time Langforddavis

showed several officers a gun, which appeared to be a Glock, holstered to his leg. On

January 18, 2008, Dobson and Langforddavis became heavily intoxicated together at

Slick’s Tavern. Langforddavis drove Dobson to a diner where he left Dobson in the care

of another friend. When Dobson got home, he called Langforddavis and told him to bring

the gun back and not to leave the gun in the car overnight. Langforddavis, however,

proceeded to Jersey Girls to pick up his girlfriend and upon arriving strapped the gun to

his leg and exited the car. Police officers, who were already at the club for other reasons,

arrested Langforddavis and confiscated the gun, later identified as Dobson’s Glock 27.

Dobson was indicted on one count of disposing of a firearm and ammunition to a person

convicted of a felony under 18 U.S.C. §§ 922(g)(1), 924(a)(2), and one count of aiding

and abetting the same, as well as four counts of perjury. The jury convicted Dobson on

                                             3
one count of disposing of a firearm and ammunition to a person convicted of a felony and

one count of perjury for lying about his knowledge of whether Langforddavis was

carrying a gun on January 5, 2008. The District Court set aside the perjury conviction,

but we reinstated it. Dobson, 380 F. App’x at 180. In October 2010, Dobson was

sentenced to forty-five months in prison. Dobson now appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) to

review the final judgment of the U.S. District Court. Because defendant concedes he

failed to raise his evidentiary claim before the District Court, we review for plain error.

See United States v. Christie, 624 F.3d 558, 567 (3d Cir. 2010). We review challenges to

jury instructions and based on variance not raised before the district court for plain error.3

United States v. Williams, 464 F.3d 443, 445 (3d Cir. 2006); United States v. Daraio, 445

F.3d 253, 259 (3d Cir. 2006). The district court’s interpretation of the United States

Sentencing Guidelines is reviewed de novo, while determinations of sentencing facts are

reviewed for clear error and the application of facts to the sentencing guidelines are

reviewed for abuse of discretion. United States v. Aquino, 555 F.3d 124, 127 (3d Cir.

2009); United States v. Tupone, 442 F.3d 145, 149 (3d Cir. 2006).

        Dobson alleges that the District Court erred in admitting statements by a witness

into evidence because the statements were irrelevant and unfairly prejudicial to Dobson.


       3
         Dobson alleges that his jury instruction claim was “partially raised” before the District
Court. Dobson cites no part of the appendix or record—nor do we find any—to support this
allegation. We therefore find that Dobson failed to raise his jury instruction challenge before the
District Court and we review his claim for plain error.

                                                 4
“Evidence which is essentially background in nature can scarcely be said to involve a

disputed matter, yet it is universally offered and admitted as an aid to understanding.”

Fed. R. Evid. 401, Comm. Notes. Here, Officer Paul Pereira—who interviewed Dobson

in the hospital on January 6—testified that he knew Dobson “was on the job with the U.S.

Marshals from previous run-ins throughout the city where me and him had spoken before

he had identified himself.” App. to Br. of Appellant at 109–10. When asked if Dobson

had been in uniform at the time, Pereira responded that Dobson had not been and that

Pereira had met Dobson “at either Jersey Girls Go-Go lounge and he also frequents a

Cinderella Go-go Lounge.” App. to Br. of Appellant at 110. The statements are relevant

as background information and do not imply any illegal or deviant activity. In this

context, “run-ins” does not mean nefarious or illegal infractions on Dobson’s part, as

Dobson alleges, but rather chance encounters between two individuals. That Dobson

frequented strip clubs was not unfairly prejudicial information where the jury heard that

he went to a strip club for his birthday. Thus, the District Court did not plainly err in

admitting Pereira’s statements.

       Dobson also alleges that prejudicial variance occurred because the government

failed to prove—and the District Court instructed the jury that it was required to find

only—that Langforddavis continually possessed Dobson’s gun from January 5 until

January 19. “Where ‘on or about’ language is used, the government is not required to

prove the exact dates, if a date reasonably near is established.” Real v. Shannon, 600

F.3d 302, 308 (3d Cir. 2010) (internal quotation marks and citations omitted) (finding no

                                              5
variance where the indictment charged the crime to have been committed in December,

but the crime may have occurred in November or January). Here, the judge issued

instructions substantively identical to the our model jury instructions. 3d Cir. Model Jury

Instructions § 3.08. Comments to those jury instructions clarify that “a variance in proof

of a date is not material in the absence of some specific evidence of prejudice.” 3d Cir.

Model Jury Instructions § 3.08, Cmt. (quoting United States v. Schurr, 775 F.2d 549, 558

(3d Cir. 1985)). The jury could have found that Dobson placed the gun into

Langforddavis’s control at any point during—or even slightly before or after—the time

period set forth in the indictment so long as Dobson was not unfairly prejudiced. Thus,

there is no plain error as to variance in the government’s proof at trial or the related jury

instruction.

       Dobson also challenges his sentence, arguing that the District Court erred in

enhancing his sentence for abuse of public trust under U.S. Sentencing Guidelines

Manual § 3B1.3. Abuse of public trust requires that the defendant, 1) be in a position of

trust, and 2) abuse that position. United States v. Sherman, 160 F.3d 967, 969 (3d Cir.

1998). The factors for determining whether a position of trust exists are: 1) the position

allows defendant to commit a difficult-to-detect wrong, 2) the degree of authority which

the position vests in the defendant vis-a-vis the object of the wrongful act, and 3) whether

the public relied on the integrity of the person occupying the position. Id. The District

Court found at sentencing that Dobson abused his position when he gave his gun to

Langforddavis, and record evidence permits this conclusion. Dobson’s sweeping

                                               6
statement that “it is common knowledge that it would have been easier for Langforddavis

and/or appellant to purchase a weapon on the streets of Newark or Elizabeth than it was

for appellant to lawfully purchase it,” is unsupported by any record evidence, and likely

irrelevant. Because of his position Dobson lawfully possessed a gun, was trusted by

establishments he frequented, was not subject to searches for illegal or dangerous

weapons, and could easily transfer his gun to another. Thus, the District Court did not

abuse its discretion in enhancing Dobson’s sentence based on Dobson’s abuse of public

trust.4

          Dobson asserts that the District Court erred in enhancing his sentence on the basis

that he provided the weapon with the belief it would be used in a felony. The Sentencing

Guidelines provide: “If the defendant used or possessed any firearm or ammunition in

connection with another felony offense; or possessed or transferred any firearm or

ammunition with knowledge, intent, or reason to believe that it would be used or

possessed in connection with another felony offense, increase by 4 levels.” U.S.

Sentencing Guidelines Manual § 2K2.1(b)(6). Here, the District Court found that Dobson

had extensive knowledge of Langforddavis’s criminal past. Furthermore,

Langforddavis’s actions on the morning of January 6 confirm this, as Langforddavis ran

          4
         Dobson seems to argue that the abuse of the position of trust must have a “victim” and
because no definable victim exists in the instant case, the judge erred in applying the sentencing
enhancement. See United States v. Hickman, 991 F.2d 1110, 1112 (3d Cir. 1993) (“To abuse a
position of trust, a defendant must, by definition, have taken criminal advantage of a trust
relationship between himself and his victim”). Dobson has inflicted a definite harm on the
general public in permitting a convicted felon to carry a firearm authorized for use by a Deputy
U.S. Marshal. That is sufficient.

                                                 7
off after the assailants, returning to triumphantly declare to an apparently unshocked

Dobson that he had “got them” and had “sprayed the vehicle” with bullets. A finder of

fact could infer Langforddavis’s actions were not a surprise to Dobson. Thus, the District

Court did not abuse its discretion in finding that Dobson had provided a weapon with the

belief that it would be used in a felony.

       Dobson argues that the District Court erred by unreasonably sentencing the

defendant and failing to rely on 18 U.S.C. § 3553(a) factors. Specifically, Dobson asserts

that the District Court did not examine factors one and two by failing to consider

Dobson’s mother’s illness and death, Dobson’s military service, the need to focus on

rehabilitation, and the cost to Dobson’s future opportunities. After hearing from Dobson,

family members and friends, reading letters, and reviewing Dobson’s criminal and

professional records, the District Court commented on the severity of the offense, the

need to protect the public, Dobson’s care for his ailing mother, and the need for a

sufficient but not excessive sentence. The District Court then sentenced Dobson to forty-

five months, within the lower half of the forty-one to fifty-one sentence range. Dobson’s

claim that the District Court failed to address certain § 3553(a) factors is directly

contradicted by the record. Because the District Court considered and discussed the

relevant § 3553(a) factors and sentenced Dobson within the middle of the Guideline range

based on facts which do not appear to be beyond the Guideline heartland, we cannot say

Dobson’s due process rights were violated or that no reasonable sentencing court would

have imposed the same sentence.

                                              8
Accordingly, we will affirm the District Court’s judgment.




                                     9
