                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5120


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TIMOTHY ROOSEVELT EVANS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00054-FL-1)


Argued:   May 14, 2010                    Decided:   May 28, 2010


Before MOTZ, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Mark Russell Sigmon, GRAEBE HANNA & WELBORN, PLLC,
Raleigh, North Carolina, for Appellant.  Denise Walker, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.    ON BRIEF: George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      On August 13, 2008, Timothy Evans pleaded guilty to one

count of being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g) and 924 (2006).               The Government did not

assert in the indictment or otherwise that Evans knew the gun

was   stolen.    Nevertheless,    in       the    Presentence      Investigation

Report, the probation officer recommended a two-level sentencing

enhancement pursuant to section 2K2.1(b)(4) of the United States

Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) because Evans

possessed a stolen firearm.           At the sentencing hearing, Evans

objected to the enhancement on Sixth Amendment grounds, arguing

that the Government should have alleged in the indictment, and

proved beyond a reasonable doubt, that the firearm was stolen.

The district court rejected that argument, adopted the probation

officer’s   recommendation,     and    sentenced         Evans   to    92   months’

imprisonment    (the   bottom   of     the       applicable      92-to-115-month

Guidelines range) and three years’ supervised release.



                                      I.

      Evans timely noted this appeal.             His attorney filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967).                      In this

brief, Evans raises two issues: the district court assertedly

(1)   miscalculated    the   Guidelines          range    and    (2)   imposed    a

substantively unreasonable sentence.

                                      2
      As   to       the    first   contention,     Evans’s    counsel    noted    that

rectifying the district court’s alleged mistake would not change

the   applicable          advisory    Guidelines    range,    thus    rendering    any

error harmless.            Petr.’s Br. 11.        We have reviewed the record,

and we agree.

      As to the second claim, Evans’s counsel conceded that it

had no merit, and we agree.                Petr.’s Br. 18-19.           The district

court properly considered the § 3553(a) factors, and Evans has

not rebutted the appellate presumption that the district court

imposed    a    reasonable         within-Guidelines      sentence.      See   United

States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).



                                          II.

      Evans filed a supplemental brief in which he contends that

the district court violated due process when it increased his

sentence       by    two    levels    pursuant     to   U.S.S.G.      § 2K2.1(b)(4).

Petr.’s Supp. Br. 2, 15.                Section 2K2.1(b)(4) imposes a two-

level enhancement when a crime involves a stolen firearm, and

the   relevant        commentary       provides    that      “[s]ubsection     (b)(4)

applies regardless of whether the defendant knew or had reason

to believe that the firearm was stolen.”                   U.S.S.G. § 2K2.1 cmt.

n.8(B).    Evans claims that the lack of a scienter requirement in

the commentary violates due process.



                                           3
       Evans   did   not   challenge     the   enhancement       on   due   process

grounds in     the   district     court,     and   therefore     we   review    that

court’s sentencing order for plain error.                See Fed. R. Crim. P.

52.     Evans must show “(1) error, (2) that is plain, and (3) that

affects substantial rights.”           United States v. Beasley, 495 F.3d

142, 148 (4th Cir. 2007) (internal quotation marks omitted).                     If

Evans    demonstrates      all   three   requirements,      we    may   “exercise

[our] discretion to notice a forfeited error, but only if (4)

the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”               Id.   In this case, even if

the district court erred in its interpretation of § 2K2.1(b)(4),

we cannot conclude that this error was “plain” because “for an

error to be ‘plain,’ the error must be plain ‘under current

law.’”     Id. at 149.      There existed no controlling law declaring

the commentary to § 2K2.1(b)(4) invalid on due process grounds

at the time of Evans’s sentencing, and there exists no such law

now.    Thus Evans cannot show plain error.



                                       III.

       For these reasons, we affirm the judgment of the district

court.

                                                                            AFFIRMED




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