United States of America v. Michquel Curington

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3156
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UNITED STATES OF AMERICA
v.
MICHQUEL CURINGTON,
Appellant
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On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. No. 02-cr-00223)
District Judge: Honorable David S. Cercone
_______________________________________
Submitted February 26, 2004
Before: RENDELL, BARRY, and BECKER, Circuit Judges.
(Filed: March 2, 2004)
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OPINION
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BECKER, Circuit Judge.
Michquel Curington appeals from the judgment of conviction for violation of 18
U.S.C. § 922(g)(1), possession of firearm by a convicted felon. At sentencing the Court
found a two level increase in the base offense level was warranted pursuant to §
2K2.1(b)(4) because the firearm was stolen. Curington’s sole argument on appeal is that,

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because there was no allegation, let alone proof, that he knew the firearm was stolen,
Sentencing Guideline § 2K2.1(b)(4) and its specific application in this case violates due
process principles under the Fifth Amendment because the enhancement is permitted
without proof of scienter.
Curington acknowledges in his brief that this argument is contrary to the existing
precedent in this Circuit, United States v. Mobley, 956 F.2 450 (3d Cir. 1992). In Mobley,
we refused to imply a scienter element and concluded that the lack of such an element in
the sentencing enhancement for the possession of a stolen firearm does not offend due
process. Id. at 452-54. Curington nonetheless requests that we reconsider that decision,
and adopt the dissent of Judge Mansmann in that case. This, of course, a panel cannot do;
only the en banc Court can overrule a prior decision, see IOP 9.1, Policy of Avoiding
Intra-circuit Conflict of Precedent. Curington is free to seek en banc consideration if he
desires.
The judgment of the District Court will be affirmed.

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