United States v. Timothy M. Curtin

104 F.3d 364 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. UNITED STATES of America, Appellee, v. Timothy M. CURTIN, Appellant. No. 96-2968. United States Court of Appeals, Eighth Circuit. Dec. 6, 1996. Submitted: Nov. 27, 1996. Filed: Dec. 6, 1996. Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. PER CURIAM. [1] Timothy M. Curtin appeals the 78-month sentence imposed by the district court1 after he pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and knowingly possessing an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5861(d) and 5871. He argues the court should have given him a three-level acceptance-of-responsibility reduction under U.S. Sentencing Guidelines Manual § 3E1.1; and, relying on United States v. Lopez, 115 S.Ct. 1624 (1995), he challenges the constitutionality of his section 922(g) conviction. [2] We cannot say the district court clearly erred in denying Curtin an acceptance-of-responsibility reduction. See United States v. Evans, 51 F.3d 764, 766 (8th Cir.1995) (standard of review). The mere fact that he pleaded guilty did not entitle Curtin to the reduction, and the court could consider unrelated criminal conduct--a post-plea arrest for drug possession--in determining the appropriateness of the reduction. See United States v. Byrd, 76 F.3d 194, 197 (8th Cir.1996). Although Curtin asserted that the drug charge was dropped, he did not deny he illegally possessed drugs while on bond awaiting sentencing. The district court properly considered the police report, and Curtin failed to show he had voluntarily withdrawn from criminal conduct or associations. See United States v. Fetlow, 21 F.3d 243, 248 (8th Cir.) (sentencing court may consider any relevant information, provided that information has sufficient indicia of reliability to support its probable accuracy), cert. denied, 115 S.Ct. 456 (1994); United States v. Morales, 923 F.2d 621, 628 (8th Cir.1991) (defendant bears burden for establishing acceptance of responsibility). [3] Curtin's Lopez challenge to 18 U.S.C. § 922(g) is foreclosed by our opinion in United States v. Bates, 77 F.3d 1101, 1103-04 (8th Cir.) (§ 922(g) is constitutional and not violative of Commerce Clause), cert. denied, 117 S.Ct. 215 (1996). [4] Accordingly, we affirm. Footnotes [1] The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri