United States of America v. James Kent, a/k/a LASHON KENT a/k/a BERNARD BEARFORT James Kent

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3786
UNITED STATES OF AMERICA
v.
JAMES KENT,
a/k/a
LASHON KENT
a/k/a
BERNARD BEARFORT
James Kent,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 02-cr-00065-2
District Judge: The Honorable Harvey Bartle, III
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2004
Before: BARRY, SMITH, and GREENBERG, Circuit Judges
(Opinion Filed: January 30, 2004)
OPINION

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BARRY, Circuit Judge
Because we write only for the parties in this not precedential opinion, we will
recite only those facts necessary to reach our decision. On February 5, 2002, appellant
James Kent was indicted for possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). After a two-day jury trial, Kent was convicted. The District Court
sentenced Kent to 112 months’ imprisonment, three years of supervised release, and a
$100 special assessment. Kent filed a timely appeal. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742, and will affirm.
I.
Kent argues that the District Court committed reversible error when it misspoke on
one occasion toward the end of the instructions to the jury. In describing the interstate
commerce element of the offense, the Court stated, “[a]ll the defendant [sic] must show is
that, at some point prior to the defendant’s possession of such firearm, the firearm was
somewhere outside of the Commonwealth of Pennsylvania.” (emphasis added). Kent
contends that the District Court impermissibly shifted the burden of proof to him.
Inasmuch as he did not object to this part of the jury instructions, we review for plain
error. See United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). Thus, he must
show that the error was “plain” or “obvious,” and that it affected his substantial rights.
United States v. Olano, 507 U.S. 725 (1993). We will not exercise our discretion to
correct the error unless that error “seriously affect[s] the fairness, integrity or public

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reputation of judicial proceedings.” United States v. Gambone, 314 F.3d 163, 182 (3d
Cir. 2003) (internal citations and quotations omitted). As we have noted, “it is a rare case
in which an improper instruction will justify reversal of a criminal conviction when no
objection has been made in the trial court.” Id. (internal citations and quotations omitted).
We find that the challenged jury instruction, although certainly misstated by the
District Court, did not constitute plain error. From the very outset of the trial, the Court
informed the jury that the government bore the burden of proof. In its preliminary
instructions, the Court stated that “the burden of proof is on the Government until the
very end of the case,” and that “the Government must prove the defendant’s guilty [sic]
beyond a reasonable doubt.” (A16-17). In its instructions to the jury at the conclusion of
the trial, the Court repeatedly emphasized that the burden of proof rests with the
government:
This presumption of innocence is a very important legal principle and it
continues with the defendants, unless and until you find that the
Government has proved its case beyond a reasonable doubt, if you do so
find. . . . The burden is always upon the Government to prove guilt beyond
a reasonable doubt. The law does not impose any burden on a defendant
and does not require a defendant to prove his or her innocence or to produce
any evidence at all. . . .
The Government must establish each of the elements of the offense with
which a defendant is charge [sic] by proof beyond a reasonable doubt. And,
unless the Government proves beyond a reasonable doubt that a defendant
has committed every element of the offense with which he is charged, you
must find him not guilty of that offense. . . .
The Government has the burden of proving beyond a reasonable doubt not
only that a crime was committed, but also that the defendant charged was

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the person who committed the crime. . . . Before any defendant may be
found guilty of any of the crimes charged in the indictment, the Government
must establish beyond a reasonable doubt that the defendant or defendants
acted in a manner forbidden by the law as charged in the indictment and
that he acted with the requisite state of mind when he committed those acts.
. . .
When instructing on the elements of the offense, the Court stated that “[i]n order to
establish its burden of proof in this case, the Government must prove the following three
elements beyond a reasonable doubt.” (A305). Regarding the interstate commerce
element, the Court instructed, immediately prior to the challenged sentence:
That is to say, the Government may satisfy its burden as to this element by
proving that the firearm passed from a state or country other than
Pennsylvania to Pennsylvania sometime prior to the time the defendant
allegedly possessed it in Pennsylvania.
In addition to the statements of the District Court reminding the jury of the
government’s burden of proof, the Court provided each juror with a written copy of the
instructions, which correctly stated: “All the government must show is that at some point
prior to defendant’s possession of such firearm the firearm was somewhere outside of the
Commonwealth of Pennsylvania” (emphasis added). And, we note, the interstate
commerce element had been stipulated to by the parties. We, therefore, do not find that
the challenged instruction constituted plain error.
II.
Kent contends, next, that the government failed to present sufficient evidence that
he possessed the firearm, a .357 Smith & Wesson, in violation of 18 U.S.C. § 922(g)(1).

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We disagree.
At trial, four police officers testified that they witnessed Kent with a gun. Officer
Ronald Szymborski stated that he saw Kent, who was approximately ten feet away from
him, “pull[] a Smith & Wesson revolver out of his waistband and throw[] it overhand into
a lot that’s on the east side of the sidewalk.” Szymborski went to the lot and saw “the
handle of the gun hanging off a roof.” He retrieved the gun, which was identified as a
Smith & Wesson .357 revolver. Officer Orlando Ortiz also testified that he “observed
James Kent throw a gun he had in his right hand. He threw it motioning over his head
into a fenced-in lot . . . .” In addition, Officer Edwin Correa told the jury that he “saw
Kent throw the gun in the lot.” Finally, Officer Brian Cowden testified that he “observed
Mr. Kent toss a gun in the air into the lot.” Although Kent points to what he believes to
be discrepancies in the testimony, under the “particularly deferential” standard of viewing
the evidence in the light most favorable to the government, we find that there was more
than sufficient evidence to support the guilty verdict. See United States v. Peppers, 302
F.3d 120, 125 (3d Cir. 2002).
III.
Finally, Kent argues that during the sentencing hearing, the District Court
impermissibly denied him an opportunity to raise factual objections to the pre-sentence
investigation report (“PSI”). The version of Federal Rule of Criminal Procedure 32(c)(1)
in effect at the time of sentencing provided that:

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At the sentencing hearing, the court must afford counsel for the defendant
and for the Government an opportunity to comment on the probation
officer’s determinations and on other matters relating to the appropriate
sentence, and must rule on any unresolved objections to the presentence
report. . . . For each matter controverted, the court must make either a
finding on the allegation or a determination that no finding is necessary
because the controverted matter will not be taken into account in, or will not
affect, sentencing.
The District Court satisfied the requirements of Rule 32. At sentencing, defense
counsel objected to the criminal history category into which Kent was placed, an
objection the Court considered and rejected. The Court then considered Kent’s pro se
motions, and ruled that “[t]o the extent he seeks a dismissal of the indictment, or a new
trial, or an acquittal, all those motions are denied as without merit.” After defense
counsel requested that Kent be sentenced at the bottom of the guideline range, the
following colloquy took place:
COURT: First, Mr. Kent, I want to ask you if you’ve read the
presentence report?
KENT: Yes, sir.
COURT: Do you have any objections to the facts contained in the
report?
KENT: Yes, I guess I’ll have to deal with them on a later date though.
COURT: All right. This is now your opportunity to address the Court
to advise me about anything that you think I should know
about you and your situation before I pronounce sentence.
KENT: No, sir. A motion was sent. You should probably have it
later on today. And, that’s it, that’s all I have to say.
COURT: Well, I – I did receive something from you, and that motion is
denied.
KENT: Ineffective counsel?
COURT; Yes.
KENT: Okay
COURT: As of today, obviously that’s without prejudice to your

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renewing it at some later time.
KENT: Okay
COURT: Anything further you wish to say –
KENT: No, sir (A329).
We simply cannot conclude that the District Court denied Kent the opportunity to
object to the PSI. When Kent stated that he will “have to deal with [the factual
objections] on a later date,” the Court explicitly afforded him an opportunity to advise the
Court of anything that Kent believed the Court should know and he declined the offer.
After the Court denied Kent’s motion based on ineffective assistance of counsel, it again
asked Kent if he wished to say anything, and Kent replied, “No, sir.”
IV.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne Trump Barry
Circuit Judge

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