                                                          NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                              ________________

                                 No. 10-1663
                              ________________

                      UNITED STATES OF AMERICA

                                       v.

                          ANTHONY JEROME JONES,
                                           Appellant
                             ________________

                On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                     (D.C. Criminal No. 1-09-cr-00006-001)
               District Judge: The Honorable Sean J. McLaughlin
                               _______________

                  Submitted Under Third Circuit LAR 34.1(a)
                              October 22, 2010

   BEFORE: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges.

                           (Filed: November 22, 2010)

                               _______________

                           OPINION OF THE COURT
                               _______________


NYGAARD, Circuit Judge.
       Because this opinion is wholly without precedential value we write briefly for the

benefit of the parties, presuming their familiarity with the facts and procedural history of

this case. Jones appeals his sentence. We will affirm.

       In a pat-down following a routine traffic stop of an automobile in which Jones was

a passenger, officers discovered that Jones was carrying marijuana and a handgun.

During the pat-down, Jones struggled, attempted to pull away from the officers, and tried

to reach for the gun in his coat. Fortunately, the officers were able to seize control of the

weapon. After his arrest it was confirmed that Jones was a felon with a New York

conviction who was prohibited from possessing firearms. The case was transferred for

federal prosecution and the state charges were dismissed. Jones was charged with

violating 18 U.S.C. § 922(g)(1). He pleaded guilty without a plea agreement.

       The District Court determined that Jones’ total base offense level was thirty-one

and that he had a criminal history classification of VI. The corresponding Sentencing

Guidelines range was 188 to 235 months and, pursuant to 18 U.S.C. § 924(e), there was a

statutory mandatory minimum of 15 years (180 months) to a maximum of life. The

District Court sentenced Jones to 211 months, followed by a 5 year term of supervised

release. Jones’ appeal is premised on his view that a sentence greater than the statutory

minimum is unreasonable. We disagree.

       In assessing the reasonableness of a sentence, we review both the procedural and

substantive aspects of the District Court’s decision for an abuse of discretion. United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). Jones has not taken issue with the

procedural component of the sentencing and we find no such issues on our own review.

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       Jones’ primary argument with respect to substantive unreasonableness is that the

firearm was improperly considered in his sentencing because he did not use the gun and

no one was harmed. However, the District Court noted that the gun in Jones’ possession

was loaded and that he struggled with police during the pat-down, which increased the

threat of harm. The District Court correctly concluded that his possession of the gun in

these circumstances was sufficient to classify him as an armed career criminal.

       Next, Jones complains that his armed career criminal classification worked to

unjustly double-count his prior convictions because it was used, first, in the calculation of

his offense level, and second, in his criminal history computation. However, we have

stated previously that double-counting the same conduct is permissible in raising the

offense level, except where it is explicitly prohibited in the Guidelines. United States v.

Fisher, 502 F.3d 293, 309 (3d Cir. 2007). No such explicit prohibition exists here.

       Jones also asserts that his sentence is unreasonable because New York may

incarcerate him a second time for the same offense, since his conduct was a parole

violation. His argument fails, however, because the instant conviction and a parole

violation are distinct. Moreover, the District Court took this issue into account at

sentencing.

       Finally, in general, we find that the District Court properly considered the section

3553(a) factors, noting Jones’ background, the nature of his offense, his significant

criminal history, and the need to provide deterrence and protect society. For all of these

reasons, we will affirm the District Court’s judgment of conviction and sentence.



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