                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 09-3312
                                     _____________

                           UNITED STATES OF AMERICA,

                                            v.

                    DEVIN ANTONIO HOCKADAY, a/k/a STEAL,

                                                          Appellant.
                                     _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                     (4:CR-06-144)
                       District Judge: Honorable Malcolm Muir
                                    _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a),
                                    May 21, 2010

           Before: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.

                             Opinion Filed: August 12, 2010


                               OPINION OF THE COURT


FUENTES, Circuit Judge:

       Devin Antonio Hockaday pled guilty to one count of conspiring to distribute

cocaine base in violation of 21 U.S.C. § 846 and one count of failing to appear for jury

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selection and trial in violation of 18 U.S.C. § 3146(a)(1). He was sentenced to a

Guidelines-range sentence of 135 months’ imprisonment. In this appeal, Hockaday

contends (1) that the District Court should not have applied a two-level sentencing

enhancement for possession of a firearm, and (2) that his sentence is unreasonable on

account of a disparity between his sentence and that of one of his co-conspirators. We

disagree with both of these contentions and will affirm.1

                                             I.

       Because we write primarily for the parties, we discuss the facts only to the extent

necessary for resolution of the issues Hockaday raises on appeal. Hockaday and Markief

Fields entered into a conspiracy to distribute crack cocaine to Jimmy Dale Doebler.

Between 2005 and 2006, Hockaday and Fields would sell between one and one and one-

half ounces of crack cocaine to Doebler three or four times per week. In 2005, Hockaday

was robbed while buying drugs, and in November 2005, he purchased a firearm, which he

carried on his person and in his car. The District Court found that he possessed the

firearm in connection with his drug distribution activities. A fourth co-conspirator, Kalief

Fields, joined the conspiracy in December 2005. Kalief Fields assisted with

transportation of drugs—he would purchase the crack cocaine from suppliers in

Philadelphia and deliver it to Doebler in Northumberland County, who would then sell




       1
          The District Court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

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the drugs.

       A government informant purchased drugs from Doebler, which alerted the

authorities to the conspiracy. Police arrested the four men and charged Hockaday with

conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846. Prior to trial,

Hockaday was released on home confinement; thereafter, he failed to appear for jury

selection, having removed his electronic monitoring device and traveled out of state.

Ultimately, Hockaday pled guilty to one count of conspiring to distribute cocaine base in

violation of 21 U.S.C. § 846 and one count of failing to appear for jury selection and trial

in violation of 18 U.S.C. § 3146(a)(1). The District Court imposed a Guidelines-range

sentence of 135 months’ imprisonment, and Hockaday filed this timely appeal.

                                             II.

       Hockaday raises two issues related to his sentence: he argues that the District

Court improperly applied a two-level sentencing enhancement for possession of a firearm

in the course of his offense and that his sentence was substantively unreasonable because

of a disparity between his sentence and that of Kalief Fields. As we now explain, neither

argument is persuasive.

       We review Hockaday’s challenge to the imposition of the firearms enhancement,

which is “essentially factual” in nature, for clear error. United States v. Drozdowski, 313

F.3d 819, 822 (3d Cir. 2002) (citation omitted). In Drozdowski, we explained:

       U.S.S.G. § 2D1.1(b)(1) requires courts to increase a defendant’s offense level
       by two levels if a dangerous weapon [such as a firearm] was possessed by the

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       defendant in the course of a drug trafficking offense. Note (3) of the
       Commentary to § 2D1.1(b)(1) explains that this enhancement “reflects the
       increased danger of violence when drug traffickers possess weapons.” The
       Note specifies that the “adjustment should be applied if the weapon was
       present, unless it is clearly improbable that the weapon was connected with the
       offense.”

Id. at 820 (emphasis added).

       The District Court had an ample factual basis to support its finding that Hockaday

possessed a firearm in the course of his drug trafficking offense. Hockaday’s own

testimony confirmed that he purchased a .38 Taurus revolver during the course of the

conspiracy. Moreover, the District Court found that he purchased this handgun as a result

of the fact that he had recently been robbed while purchasing drugs, and Kalief Fields

testified that Hockaday carried the firearm on his person and in his car. It was more than

reasonable for the District Court to infer from these facts that Hockaday possessed this

firearm in order to protect himself from being robbed while possessing substantial sums

of money from his drug trafficking activities. See United States v. Manigan, 592 F.3d

621, 629 (4th Cir. 2010) (“[F]irearms that are readily accessible during drug activities can

be deemed as possessed in connection there-with.”). Certainly it was not “clearly

improbable” that the handgun Hockaday carried had a connection to his drug trafficking

activities, and the District Court’s factual finding that the firearm was connected with

Hockaday’s offense was not clearly erroneous.2 Drozdowski, 313 F.3d at 824. We



       2
        By contrast, “an unloaded hunting rifle is a firearm that would not be readily
connected to drug activities.” Manigan, 592 F.3d at 629 (citation omitted).

                                             -4-
therefore reject Hockaday’s contention that the District Court improperly applied the two-

level sentencing enhancement.

       Equally unavailing is Hockaday’s challenge to the substantive reasonableness of

his sentence. When considering a challenge to the sentencing court’s substantive

application of the 18 U.S.C. § 3553(a) factors, our “review is highly deferential and we

will affirm ‘unless no reasonable sentencing court would have imposed the same sentence

on that particular defendant for the reasons the district court provided.’” United States v.

King, 604 F.3d 125, 144 (3d Cir. 2010) (quoting United States v. Tomko, 562 F.3d 558,

568 (3d Cir. 2009) (en banc)). Hockaday argues that his sentence was unreasonable on

account of the fact that his co-conspirator, Kalief Fields, received a shorter sentence for

his drug conspiracy offense—Hockaday was sentenced to 120 months’ imprisonment for

conspiring to distribute crack cocaine,3 while Fields was sentenced to thirty-four months’

imprisonment.

       Hockaday is of course correct that sentencing courts are required to account for

“the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct” in their sentencing decisions. 18

U.S.C. § 3553(a)(6); see United States v. Batista, 483 F.3d 193, 199 (3d Cir. 2007). In

this case, the imposition of different sentences upon Hockaday and Fields was not




       3
          Hockaday also received a consecutive fifteen-month sentence for his offense of
failing to appear for jury selection or trial.

                                             -5-
“unwarranted” because the two defendants were not similarly situated, as the District

Court explained. § 3553(a)(6). In particular, Fields cooperated with investigators (and

received a downward departure for providing substantial assistance pursuant to U.S.S.G.

§ 5K1.1), played a comparatively smaller role in the drug distribution conspiracy, and did

not possess a firearm in connection with his offense. By contrast, Hockaday did not

cooperate with investigators, he removed his electronic monitoring device and fled the

jurisdiction on the eve of trial, he played a significant role in the conspiracy, and he

possessed a firearm in connection with his offense. The District Court did not abuse its

discretion in relying upon these material distinctions to impose disparate sentences upon

Hockaday and Fields. See Batista, 483 F.3d at199. The two defendants clearly were not

similarly situated, and the disparity in their sentences was more than justified by the

reasons given by the District Court.

                                             III.

       For the foregoing reasons, we affirm the District Court’s judgment.




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