                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 07-1745
                                    ______________

                           UNITED STATES OF AMERICA

                                            v.

                                   GERALD BLACK,
                                              Appellant
                                    ______________

                     On Appeal from the United States District Court
                                         for the
                           Western District of Pennsylvania
                                (D.C. Crim. No. 06-101)
                         District Judge: Terrence F. McVerry
                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    on May 18, 2010

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

                              (Opinion Filed: July 7, 2010)
                           _____________________________

                              OPINION OF THE COURT
                           _____________________________


FUENTES, Circuit Judge:

      Defendant Gerald Black was convicted of unlawful possession of ammunition and

firearms by a convicted felon. The District Court, following an evidentiary hearing,

determined that Black used his firearm in connection with another felony offense and

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applied a four-level enhancement to his sentence, pursuant to U.S.S.G. § 2K2.1(b)(6)

(2006). On appeal, Black challenges the court’s application of this enhancement. He also

challenges a two-level enhancement to his sentence under U.S.S.G. § 2K2.1(b)(4)(A) for

possession of a stolen firearm. For the reasons that follow, we will affirm the sentence

imposed by the District Court.

                                              I.

       Because we write primarily for the parties, we only discuss the facts and

proceedings to the extent necessary for resolution of this case. On July 16, 2005, at

approximately 1:30 a.m., Gerald Black (“Black”) appeared at the home of his estranged

wife, Tina Black (“Tina”). He pulled out a handgun and put it to her side, telling her that

they were going to talk. As Black led her into the house, Tina furtively signaled to her

neighbor to call the police. Black took away Tina’s cell phone and insisted that he would

kill both Tina and himself if the police came. Awakened by the loud argument that

ensued, their five-year-old daughter Hannah entered the room. Sometime thereafter,

William Mares (“Mares”), a friend of Black’s, called Tina’s cell phone and spoke with

Black. Mares later arrived at the house and asked Black to give him the handgun. After a

brief argument, Black told Mares to take Hannah and leave. Black later allowed Tina to

leave as well, telling her that he was going to kill himself and set the house on fire.

       Tina related these events to a City of Pittsburgh police officer who responded, at

approximately 2:00 a.m., to a 911 domestic disturbance call. Roughly one hour later, a

City of Pittsburgh police negotiator arrived on the scene. Black, who had barricaded

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himself in the home, made numerous threats to the negotiator, including that he would

blow up the house or burn it down. The negotiator witnessed Black crawl out onto the

roof and repeatedly put a gun in his mouth or to his head. Negotiations lasted for

approximately seven hours, after which Black surrendered to the police. The firearm had

one live round in the chamber. It had been reported stolen in 1993.

       On October 12, 2006, Black pled guilty to violating 18 U.S.C. § 922(g)(1),

possession of a firearm by a convicted felon. There was no plea agreement. The District

Court ordered a Presentence Investigation Report (“PSR”), which calculated Black’s base

offense level as 20. The PSR added 4 levels for using or possessing a firearm in

connection with another felony offense, as provided by U.S.S.G. § 2K2.1(b)(6),1 and

another 2 levels pursuant to U.S.S.G. § 2K2.1(b)(4)(A) for possession of a stolen firearm.

After a three-level deduction for timely acceptance of responsibility, the total offense

level was 23. Based on Black’s criminal history category of IV, this resulted in a

guideline range of 70 to 87 months.

       The District Court conducted an evidentiary hearing on January 18, 2007 to

determine whether, pursuant to U.S.S.G. § 2K2.1(b)(6), Black actually “used or

possessed” the firearm “in connection with another felony offense.” Based upon the




   1
     Although it stated it was using the 2006 edition of the Guidelines Manual, the
   PSR referenced U.S.S.G. § 2K2.1(b)(5), the identical provision in the 2005 edition.
   The parties also refer to U.S.S.G. § 2K2.1(b)(5) throughout their briefs. We will,
   instead, refer to § 2K2.1(b)(6), the relevant provision in the Guidelines Manual in
   effect at the time of sentencing.

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evidence, the court affirmed its earlier tentative findings on the issue. On January 23,

2007, the court sentenced Black to a term of 70 months imprisonment.

       On appeal, Black challenges both the application of the four-level enhancement for

possession of a firearm in connection with another felony and the two-level enhancement

for possession of a stolen firearm. With respect to the four-level enhancement, Black

argues that, because he was never charged or convicted for the felony charges related to

the enhancement, the court violated his due process rights. With respect to the two-level

enhancement, Black argues the he did not know the firearm was stolen and challenges the

court’s strict liability application of the enhancement.

                                              II.

       A. Use of a firearm in connection with another felony

       The four-level enhancement under U.S.S.G. § 2K2.1(b)(6) was related to charges

of simple assault, unlawful restraint, and receiving stolen property.2 These charges were

nolle prossed. As a result, Black neither pled guilty nor admitted to any of the charges,

nor was he tried on any of them. Black challenges the reliance on these offenses for the



   2
    Under Pennsylvania statute, simple assault is a Misdemeanor 2 offense. 18 Pa.
   Cons. Stat. § 2701. The crimes of unlawful restraint and receiving stolen property
   are both Misdemeanor 1 offenses. 18 Pa. Cons. Stat. §§ 2902, 3903, 3925.
   However, the commentary to U.S.S.G. § 2K2.1 provides that an offense is treated
   as a “felony conviction” if it is punishable by “imprisonment for a term exceeding
   one year, regardless of whether such offense is specifically designated as a felony
   and regardless of the actual sentence imposed.” U.S.S.G. § 2K2.1 cmt. n.1 (2009).
   Since Misdemeanor 1 and 2 offenses are punishable for terms of up to five and two
   years respectively, 18 Pa. Cons. Stat. § 1104, these crimes were treated as felony
   offenses pursuant to § 2K2.1(b)(5).

                                              4
purpose of sentencing enhancement as a violation of his due process rights, arguing that

the Court did not prove beyond a reasonable doubt that he was guilty of the offenses.

          In our en banc decision in United States v. Grier, 475 F.3d 556 (3d Cir. 2007), we

held “that facts relevant to the advisory United States Sentencing Guidelines . . . do not

require proof beyond a reasonable doubt.” Id. at 559. Since courts are not bound by the

Guidelines, additional facts related to sentencing enhancements are not treated as

“elements” of a crime because they do not increase the maximum sentence a defendant

may receive. 475 F.3d at 564. Relying on United States v. Booker, 543 U.S. 220, 233, 259

(2005), and Apprendi v. New Jersey, 530 U.S. 466, 480 (2000), we held that “the right to

proof beyond a reasonable doubt does not apply to facts relevant to enhancements under

an advisory Guidelines regime.” 475 F.3d at 565. Accordingly, the District Court was

required to apply a “preponderance of the evidence” standard to its factual determination

that Black committed “another felony offense” in relation to the offense at bar. 475 F.3d

at 561.

          Reviewing for clear error, id., we find that there was sufficient evidence to

determine that Black committed simple assault. Pennsylvania law defines simple assault

as an “attempt[] by physical menace to put another in fear of serious bodily injury.” 18

Pa. Cons. Stat. § 2701(a)(3). Police reports and the testimony of two City of Pittsburgh

police officers revealed that Defendant Black repeatedly pointed his handgun at Tina and

threatened to kill her. These reports were deemed “to be true, correct, credible, honest,

forthcoming, [and] done contemporaneously with [the police officers’] observations of

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the incidents which occurred.” (Supp. App. 129.) The District Court gave adequate reason

for discrediting conflicting testimony by Tina Black and Bill Mares, citing the strong

possibility of bias in favor of the Defendant. The court’s factual finding was not clearly

erroneous. 475 F.3d at 569-70. Nor was the court’s sentence unreasonable. 543 U.S. at

261. Accordingly, we affirm the District Court’s use of the four-level enhancement.

       B. Use of a stolen firearm

       Additionally, Black challenges the District Court’s application of a two-level

sentencing enhancement for possession of a stolen firearm. U.S.S.G. § 2K2.1(b)(4)(A).

Black claims that he was unaware the handgun was stolen and contends that the statute’s

lack of a scienter requirement is unconstitutional. Because Black did not raise this issue at

the District Court level, we review for plain error. United States v. Olano, 507 U.S. 725,

732-35 (1993).

       We have previously considered and rejected similar arguments. In United States v.

Mobley, 956 F.2d 450 (3d Cir. 1992), we found that strict liability application of the

enhancement did not violate the Due Process Clause and was rationally related to the

Congressional aim of regulating illegal arms sales. Id. at 453-59.

       Black relies on a recent decision from the Eastern District of New York, United

States v. Handy, 570 F. Supp. 2d 437 (E.D.N.Y. 2008), which held that, in light of Booker

and Apprendi, the absence of a mens rea requirement in U.S.S.G. § 2K2.1 is

unconstitutional. We do not find Handy to be persuasive. Moreover, we note that our

sister circuits have continued to uphold the strict liability application of § 2K2.1(b)(4)

                                              6
post-Booker. See United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009) (“This court

has continually enforced the clear and unambiguous language of §2K2.1(b)(4) and its

strict liability standard.”); United States v. Statham, 581 F.3d 548, 553-54 (7th Cir. 2009)

(“[Defendant] need not have known that serial numbers had been removed from the

weapons.”); United States v. Brown, 514 F.3d 256, 269 (2d Cir. 2008) (same); see also

United States v. Ellsworth, 456 F.3d 1146, 1148 (9th Cir. 2006) (upholding distinction

between sentencing enhancement for stolen explosives, which has scienter requirement,

and enhancement for stolen firearm, which lacks scienter requirement); United States v.

Webb, 403 F.3d 373, 384 n.7 (6th Cir. 2005) (quoting United States v. Murphy, 96 F.3d

846, 849 (6th Cir. 1996)) (holding that “[a] statute may provide criminal liability without

mens rea consistent with due process if it is a regulatory measure in the interest of public

safety”).

       Accordingly, we find that our decision in Mobley remains proper and that the strict

liability standard of §2K2.1(b)(4) does not violate Due Process. As such, we affirm the

District Court’s application of the two-level enhancement for possession of a stolen

firearm.




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