                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 10-2553
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                   NAEEM COTTON,
                                                        Appellant
                                      ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                      (D.C. Crim. No. 1-09-cr-00563-001)
                   District Judge: Honorable Renee M. Bumb
                                  ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                 February 9, 2011
           Before: JORDAN, GREENAWAY, JR. and WEIS, Circuit Judges.
                            (Filed: February 28, 2011)
                                   ____________

                                        OPINION
                                      ____________

WEIS, Circuit Judge.

              Defendant pleaded guilty to a one-count indictment charging him with

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Finding that the gun had been stolen, the District Court added an enhancement under

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U.S.S.G. § 2K2.1(b)(4)(A). The resulting Guidelines range was 92 to 115 months, based

on a total offense level of 23 and Criminal History Category VI. The District Court

sentenced defendant to a 105-month term of imprisonment.

              On appeal, defendant vigorously argues that there was inadequate proof

that the firearm had, in fact, been stolen. We are not persuaded that the District Court’s

finding on this point was clearly erroneous. See United States v. Sanchez, 507 F.3d 532,

538-39 (7th Cir. 2007) (affirming two-level sentence enhancement based upon police

report of stolen firearm, where other indicia of reliability were present); see also United

States v. Bates, 584 F.3d 1105, 1108-10 (8th Cir. 2009) (same, where, in absence of

police report, district court relied upon testimony of gun’s prior owner as to

circumstances of its theft).

              In addition, the District Court stated that, even if it “had . . . not assessed

the two point adjustment for . . . the firearm being stolen, [it] nonetheless would have

varied upward to the [105-month] sentence” based on the § 3553(a) factors. See, e.g.,

United States v. Smalley, 517 F.3d 208, 214 n.6 (3d Cir. 2008) (“[I]f a district court

wishes to provide for the possibility that a different Guidelines calculation applies by

handing down an alternative sentence, it must still begin by determining the correct

alternative Guidelines range and properly justify the chosen sentence”).

              Defense counsel presented a lengthy and thoughtful argument on behalf of

his client. The record before us reflects the District Court’s considered and extensive

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analysis of the § 3553(a) factors. We find no significant procedural or substantive error

in the sentencing and, therefore, defer “‘to the . . . determination that the § 3553(a)

factors, on a whole,’ justify the sentence.” United States v. Tomko, 562 F.3d 558, 568

(3d Cir. 2009) (citation omitted).

              Accordingly, we will affirm the Judgment of the District Court.




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