08-5581-cr
USA v. Thompson

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 23rd day of March, two thousand ten.

Present: JOSEPH M. McLAUGHLIN,
         ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
                           Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                           -v-                           No. 08-5581-cr
                                                         NAC
DARNELLE THOMPSON,

                           Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                         David M. Samel, New York, N.Y.

For Appellee:                                    Amir H. Toossi and David C. James, Assistant
                                                 United States Attorneys, for Benton J.
                                                 Campbell, United States Attorney for the
                                                 Eastern District of New York, Brooklyn, N.Y.

       Appeal from the United States District Court for the Eastern District of New York
(Bianco, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Darnelle Thompson appeals from a judgment of the United States

District Court for the Eastern District of New York (Bianco, J.), entered November 6, 2008,

convicting defendant, following a guilty plea, of one count of possessing a firearm after having

been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district

court sentenced defendant principally to a term of 84 months’ imprisonment. We assume the

parties’ familiarity with the underlying facts and procedural history of this case.

        Defendant, through counsel, challenges the district court’s decision at sentencing to

impose a two-level enhancement to defendant’s offense level for possessing a stolen firearm

pursuant to U.S.S.G. § 2K2.1(b)(4)(A). We review the sentence imposed by the district court for

both procedural and substantive reasonableness. United States v. Rattoballi, 452 F.3d 127, 131-

32 (2d Cir. 2006). “Reasonableness review is akin to review for abuse of discretion, under which

we consider whether the sentencing judge exceeded the bounds of allowable discretion[,] . . .

committed an error of law in the course of exercising discretion, or made a clearly erroneous

finding of fact.” United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007) (internal quotation

marks omitted). A district court commits procedural error, when, for instance, it “fails to

calculate the Guidelines range” or “makes a mistake in its Guidelines calculation.” United States

v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). “In this context, we review factual

findings for clear error and the court’s interpretation of the Sentencing Guidelines de novo.”

United States v. Thompson, No. 07-0260 (E.D.N.Y. Nov. 4, 2008).

       The sole issue raised in this appeal is whether the district court committed procedural


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error when it imposed the two-level stolen firearm enhancement. Defendant argues that the

enhancement violates due process principles and Congressional intent because it does not require

proof that the defendant knew that the firearm was stolen. We need not address this argument,

however, because the district court made clear that its sentence, which was “based on the nature

of th[e] offense, in light of [defendant’s] long criminal history . . . would be the same, regardless

of whether or not [the] enhancement were to apply in this case.” Accordingly, because “the

record indicates clearly that the district court would have imposed the same sentence” regardless

of whether or not the enhancement applies, any claimed error (assuming that there was error),

“may be deemed harmless.” United States v. Jass, 569 F.3d 47, 69 (2d Cir. 2009) (internal

quotation marks omitted); see also United States v. Bermingham, 855 F.2d 925, 934 (2d Cir.

1988) (“As long as the sentencing judge is satisfied that the same sentence would have been

imposed no matter which of the two guideline ranges applies, the sentence should stand.”).

       We have considered defendant’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O'HAGAN WOLFE, CLERK




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