                                                    NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                   No. 09-3574
                                 _______________

                         UNITED STATES OF AMERICA,

                                         v.

                            JOHN MALCOLM SMITH,
                                              Appellant
                               _______________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                      (D.C. Criminal No. 2-08-cr-00331-001)
                        District Judge: Hon. Alan N. Bloch
                                 _______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 21, 2011

               BEFORE: BARRY, AMBRO and COWEN , Circuit Judges

                                (Filed: June 29, 2011)
                                  _______________

                                    OPINION
                                 _______________


COWEN, Circuit Judge.

       John Malcolm Smith appeals from the District Court’s judgment of sentence. We

will affirm.

                                         I.
        On August 7, 2008, officers from the Pittsburgh Police Department stopped a

silver Nissan Altima with a broken tail light that had failed to signal a lane change.1

When the vehicle pulled over, Smith exited from the back seat. At that time, one of the

officers saw the handle of a firearm sticking out of Smith’s pants pocket. After arresting

him, the officers also recovered a baggie containing crack cocaine and $1,023.00 in cash

from his pants pockets. When questioned, Smith told the officers that he had intended to

sell the drugs.

        Smith subsequently pled guilty to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). At the sentencing hearing, Smith made a

motion for a downward departure pursuant to U.S.S.G. § 5K2.12,2 arguing that he was

carrying the firearm for self-protection in response to an attempt made on his life the year

before. Smith also argued that a variance from the Guideline range would be appropriate


1
 These facts are taken from the Pre-Sentence Report (“PSR”) adopted by the District
Court.
2
    U.S.S.G. § 5K2.12 provides:

        If the defendant committed the offense because of serious coercion,
        blackmail or duress, under circumstances not amounting to a complete
        defense, the court may depart downward. The extent of the decrease
        ordinarily should depend on the reasonableness of the defendant’s actions,
        on the proportionality of the defendant’s actions to the seriousness of
        coercion, blackmail, or duress involved, and on the extent to which the
        conduct would have been less harmful under the circumstances as the
        defendant believed them to be. Ordinarily coercion will be sufficiently
        serious to warrant departure only when it involves a threat of physical
        injury, substantial damage to property or similar injury resulting from the
        unlawful action of a third party or from a natural emergency. . . .
                                             2
under 18 U.S.C. § 3553(a). In support of his argument, Smith’s probation officer and

family members testified that Smith had been shot in July 2007, that someone had called

his sister afterwards and told her that Smith’s life was in danger, and that someone shot at

Smith’s sister’s window in January 2008.

       The District Court calculated a Guideline range of 140 to 175 months based on a

total offense level of 29 (which included a three-level downward adjustment for

acceptance of responsibility) and a criminal history category of V. The District Court

rejected Smith’s motions, finding that neither a downward departure nor a variance was

appropriate under the circumstances.       The court sentenced Smith to the statutory

maximum, 120 months’ imprisonment, and three years of supervised release.               See

U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized maximum sentence is less than

the minimum of the applicable [G]uideline range, the statutorily authorized maximum

sentence shall be the [G]uideline sentence.”).

       This appeal followed.

                                            II.

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

U.S.C. § 1291. We review the District Court’s sentence for reasonableness under an

abuse of discretion standard. United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008)

(citing Gall v. United States, 552 U.S. 38, 46 (2007)). To this end, “[w]e must first

ensure that the district court committed no significant procedural error in arriving at its

decision” and, it if has not, “we then review the substantive reasonableness of the


                                             3
sentence.”   United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008).              To be

substantively reasonable, the final sentence must be “premised upon appropriate and

judicious consideration of the relevant [18 U.S.C. § 3553(a)] factors.” United States v.

Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (internal quotation marks and citation

omitted).

       First, to the extent that Smith argues that the District Court erred when it denied

his motion for a downward departure pursuant to U.S.S.G. § 5K2.12, we lack jurisdiction

to review a district court’s discretionary refusal to depart from the applicable Guideline

range unless the district court mistakenly believed that it lacked the authority to depart.

See United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006), abrogated on other

grounds by Kimbrough v. United States, 552 U.S. 85 (2007). Smith does not argue, and

the record does not indicate, that the District Court in this case believed that it was not

authorized to grant the motion.      Consequently, we cannot review the denial of the

motion.

       Smith next argues that the District Court arrived at a substantively unreasonable

sentence.    We disagree.     At the sentencing hearing, the District Court carefully

considered Smith’s request for a variance and weighed all of the relevant information in

arriving at its decision. First, the court found that self-defense was not likely the primary

reason why Smith was carrying the gun when he was arrested. The court noted that,

when Pittsburgh Police retrieved the gun from Smith, he was also carrying crack

cocaine—which he admitted that he intended to sell. The court also noted that Smith’s


                                             4
past involvement with weapons, drugs, and violent crimes further indicated that he was

probably not acting in self-defense at the time of his arrest.      Thereafter, the court

considered the § 3553(a) factors, including Smith’s significant criminal history, the

circumstances in which he was raised, the need for adequate deterrence, and public

safety. We are satisfied that the District Court applied the relevant § 3553(a) factors to

the facts of the case and imposed a substantively reasonable sentence.

                                           III.

      For the reasons stated above, we will affirm the judgment of sentence.




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