United States of America v. CHRISTOPHER PADILLA also known as TOBY PADILLA also known as CHRISTOPHER GONZALES…

*Honorable Eugene E. Siler, Jr., Senior Circuit Judge for the United States Court
of Appeals for the Sixth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4682
___________
UNITED STATES OF AMERICA
v.
CHRISTOPHER PADILLA
also known as TOBY PADILLA
also known as CHRISTOPHER GONZALES
Christopher Padilla,
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 01-cr-00391-1)
District Judge: The Honorable Bruce W. Kauffman
___________
Submitted Under Third Circuit LAR 34.1(a)
October 30, 2008
BEFORE: McKEE, NYGAARD, and SILER, Circuit Judges.*
(Filed: January 20, 2009)

-- 1 of 3 --

2
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant, Christopher Padilla, pleaded guilty to possession of a firearm by a
convicted felon. He was sentenced to 46 months of imprisonment, three years of
supervised release, and $100 special assessment. Trial counsel failed to file a notice of
appeal. The District Court, however, granted Appellant’s motion under 28 U.S.C. § 2255,
reinstating Padilla’s right to file a direct appeal nunc pro tunc. This appeal followed.
On appeal Padilla argues that the District Court erred by imposing a four-level
sentencing enhancement upon him for possessing a firearm and recklessly endangering
others by firing it in the air, in violation of Pennsylvania law. He argues that because trial
counsel failed to object to the enhancement, counsel’s conduct falls below the horizon of
acceptable professional effectiveness. We will affirm.
Counsel will not be considered ineffective if the objection to the enhancement
would have been futile. It is the Appellant’s burden to establish that the District Court
committed the plain error. To do so, he must show that (1) the District Court erred; (2)
the error was obvious under the law at the time; and (3) the error affected substantial
rights and affected the outcome of the proceedings. Johnson v. United States, 520 U.S.
461, 467 (1997).

-- 2 of 3 --

3
We conclude that Padilla is not entitled to relief. The District Court was permitted
to rely on the undisputed facts stated in the presentence report, United States v. Siegel,
477 F.3d 87, 93 (3d Cir. 2007). Those facts, contrary to Padilla’s argument on appeal,
adequately set forth the elements of another felony offense – reckless endangerment – in
violation of Pennsylvania law. Thus the record supports the sentencing enhancement
imposed by the District Court. For the foregoing reasons, we will affirm.

-- 3 of 3 --