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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4080
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
JONATHAN LATTIMORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:09-cr-00444-RWT-2)
Submitted:
November 8, 2011
Decided:
November 21, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elita C. Amato, LAW OFFICE OF ELITA C. AMATO, Arlington,
Virginia, for Appellant. Rod J. Rosenstein, United States
Attorney,
Mara
Zusman
Greenberg,
Assistant
United
States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan
imposed
Lattimore
following
his
appeals
guilty
plea
his
to
two
120-month
sentence
counts
being
of
convicted felon in possession of a firearm, in violation of 18
U.S.C. 922(g)(1) (2006).
On appeal, Lattimore argues that the
district
in
points
court
for
erred
each
of
(1)
two
assessing
prior
juvenile
two
criminal
adjudications;
history
(2)
in
applying a four-level enhancement for firearms trafficking; and
(3)
in
creating
an
unwarranted
Lattimore and his codefendants.
sentencing
disparity
between
We affirm.
We review a sentence imposed by a district court under
a
deferential
abuse-of-discretion
standard.
Gall
v.
United
States, 552 U.S. 38, 46 (2007); United States v. Lynn, 592 F.3d
572, 578 (4th Cir. 2010) (abuse of discretion standard of review
applicable
when
defendant
properly
preserves
claim
of
sentencing error in district court [b]y drawing arguments from
[18 U.S.C.] 3553 [(2006)] for a sentence different than the
one ultimately imposed).
first
examine
the
sentence
In conducting this review, we must
for
significant
procedural
error,
including failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.
Gall, 552 U.S. at 51.
2
In reviewing the
district
courts
application
of
the
Guidelines,
we
review
findings of fact for clear error and questions of law de novo.
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
Under
U.S.
Sentencing
Guidelines
Manual
(USSG)
4A1.2(d)(2)(A) (2010), the district court should assess two
criminal history points for each adult or juvenile sentence to
confinement of at least sixty days if the defendant was released
from such confinement within five years of his commencement of
the
instant
sentences
offense.
did
not
4A1.2(d)(2)(A).
Lattimore
qualify
as
argues
that
confinement
for
his
juvenile
purposes
of
We need not determine whether Lattimore is
correct because the district court would have calculated the
same Guidelines range, and thus imposed the same sentence, even
if it had applied USSG 4A1.2(d)(2)(B), as Lattimore argues was
appropriate.
See United States v. Savillon-Matute, 636 F.3d
119, 123 (4th Cir. 2011), cert. denied, 2011 WL 308873 (U.S.
Oct. 17, 2011) (No. 11-5393).
Therefore, this claim entitles
Lattimore to no relief.
Next, Lattimore challenges application of a Guidelines
enhancement for firearms trafficking.
In applying a sentencing
enhancement, the district court must find by a preponderance of
the
evidence
occurred.
Cir. 2009).
that
the
conduct
underlying
the
enhancement
See United States v. Grubbs, 585 F.3d 793, 803 (4th
Under USSG 2K2.1(b)(5), a four-level increase in
3
offense
level
firearms
is
appropriate
trafficking.
if
the
Subsection
defendant
(b)(5)
engaged
applies
if
in
the
defendant
(i) transported, transferred, or otherwise disposed of
two or more firearms to another individual, or
received two or more firearms with the intent to
transport, transfer, or otherwise dispose of firearms
to another individual; and (ii) knew or had reason to
believe that such conduct would result in the
transport, transfer, or disposal of a firearm to an
individual (I) whose possession or receipt of the
firearm would be unlawful; or (II) who intended to use
or dispose of the firearm unlawfully.
USSG 2K2.1 cmt. n.13(A).
Lattimore concedes that the evidence showed that he
transported two or more firearms; however, he argues that the
evidence
was
insufficient
to
support
the
district
courts
finding that he knew or had reason to believe that the person to
whom the firearms were transferred would unlawfully possess them
or intended to use or dispose of them unlawfully.
We conclude
that a preponderance of the evidence showed that Lattimore, at
the very least, had reason to believe that the person to whom he
transferred
the
firearms
would
possess
them
unlawfully
or
intended to use or dispose of them unlawfully, where Lattimore
repeatedly
sold
transactions.
firearms
to
the
purchaser
during
drug
Accordingly, we hold that the district court did
not abuse its discretion in applying a four-level enhancement
pursuant to 2K2.1(b)(5).
Finally,
his
sentence
sentence,
and
Lattimore
those
district
of
court
challenges
his
must
the
disparity
codefendants.
consider
the
In
between
imposing
need
to
avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.
U.S.C. 3553(a)(6).
18
A district court, however, has extremely
broad discretion when determining the weight to be given each of
the 3553(a) factors.
United States v. Jeffrey, 631 F.3d 669,
679 (4th Cir. 2011), cert. denied, 2011 WL 4532052 (U.S. Oct. 3,
2011) (No. 10-10894).
Lattimore argues that the district court created an
unwarranted sentencing disparity because his codefendants were
sentenced to significantly lower sentences than he was.
We hold
that it was well within the district courts broad discretion to
impose
on
Lattimore
120-month
sentence;
the
court
clearly
noted that Lattimores extensive criminal history and his role
in the offense warranted the challenged disparities.
this
court,
along
with
the
majority
of
the
Moreover,
circuits,
has
recognized that 3553(a)(6) is aimed at eliminating national
sentencing
disparities,
not
disparities
between
codefendants.
United States v. Withers, 100 F.3d 1142,1149 (4th Cir. 1996);
see also United States v. Simmons, 501 F.3d 620, 623-24 (6th
Cir. 2007) (collecting cases).
We therefore affirm the district courts judgment.
dispense
with
oral
argument
because
the
facts
and
We
legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
