Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-10-2009

USA v. Malloy
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3487




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Recommended Citation
"USA v. Malloy" (2009). 2009 Decisions. Paper 1556.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1556


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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                        No. 07-3487
                       _____________

               UNITED STATES OF AMERICA


                              v.

                      JOHN MALLOY,

                              Appellant

                        ___________

       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                (D.C. Criminal No. 05-cr-386)
          District Judge: Honorable John E. Jones
                        ___________

        Submitted Under Third Circuit L.A.R. 34.1(a)
                      March 9, 2009

Before: FUENTES, CHAGARES and ALDISERT Circuit Judges.

               (Opinion Filed: April 10, 2009)




                OPINION OF THE COURT




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FUENTES, Circuit Judge:

       In 2005, John Malloy and others burglarized a firearms store, stealing 188

firearms. Malloy pled guilty to being a felon in possession of a firearm, in violation 18

U.S.C. § 922(g), and was sentenced to 120 months imprisonment. Malloy appeals his

sentence arguing that his offense level was calculated incorrectly. In particular, Malloy

argues that the District Court was only entitled to calculate his Guidelines’ range based on

facts to which he had stipulated. Further, Malloy argues that the District Court should

have given him a “minor role” reduction under United States Sentencing Guidelines

(U.S.S.G.) § 3B1.2.

       Because we write exclusively for the parties, we discuss the facts only to the extent

necessary for the resolution of the issues on appeal. In 2005, Malloy and four others

traveled from Philadelphia to Tioga County, Pennsylvania to commit a burglary at an all-

terrain vehicle (ATV) business. Once in Tioga County, the group decided instead to

burglarize a firearms store. They went to the store in the late night hours, cut the

telephone line running to the store, pried open the front door, tampered with the alarm

and smashed display cases. They stole 188 firearms, as well as ammunition and other

goods. The group returned to Philadelphia, where Malloy and one other ground off the

serial numbers on the weapons. Each defendant kept a few of the firearms, and the rest

were sold. Malloy was indicted and eventually pled guilty, admitting responsibility for

his role in the offense.



                                              2
       Malloy has prior convictions for—among other offenses—aggravated assault,

receiving stolen property, and burglary. The aggravated assault offense constituted a

second degree felony. The commentary to U.S.S.G. § 4B1.2 lists aggravated assault as a

“crime of violence.”

       “As we have noted repeatedly, sentencing courts must continue to calculate a

defendant’s Guidelines sentence precisely as they would have before Booker.” United

States v. Ali, 

, 142-143 (3d Cir. 2007) (reiterating that the standard of proof

under the Guidelines continues to be preponderance of the evidence). Thus, the District

Court did not err in making its own factual findings concerning Malloy’s criminal history

or the number of firearms involved in his offense.

       We review such factual findings for clear error. United States v. Siegel, 

, 89 (3d Cir. 2007). There was none here; the Government presented ample evidence

of Malloy’s aggravated assault conviction and of the number of firearms involved in the

offense.

       Similarly, the District Court did not err in concluding that “Malloy was an integral

member of the offense” and not entitled to a minor role reduction. In particular, like the

District Court, we note that it is “particularly troubling that Malloy obliterated the serial

numbers from a portion of the guns.”

       Finally, we conclude that the District Court did not abuse its discretion in

sentencing Malloy to the statutory maximum of 120 months, a sentence well below the



                                               3
otherwise applicable Guidelines’ range. In that regard, we note that the record reflects

that the District Court gave serious consideration to the factors under 18 U.S.C. §

3553(a). In particular, the District Court noted that deterrence was especially important in

this case because “it is quite clear . . . that to the extent that [Malloy]’s not been in prison,

that he’s been actively engaged in criminal enterprises.” The District Court emphasized

that Malloy’s criminal history, role in the burglary, and involvement in post-burglary

activities were all more serious than that of co-defendants who received lower sentences.

The District Court also noted the seriousness of the offense and the harm caused by stolen

firearms that make their way to the streets of Philadelphia.

       For the foregoing reasons, we will affirm the District Court's judgment of

sentence.




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