UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4290
TIMOTHY SCOTT WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CR-98-11-BO)
Submitted: October 26, 2000
Decided: November 14, 2000
Before MICHAEL and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Douglas McCullough, STUBBS & PERDUE, P.A., Raleigh, North
Carolina, for Appellant. Janice McKenzie Cole, United States Attor-
ney, Anne M. Hayes, Assistant United States Attorney, Felice
McConnell Corpening, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
2 UNITED STATES v. WILLIAMS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Timothy Scott Williams was charged in separate indictments with
two counts of transmitting threats to injure in interstate commerce,
see 18 U.S.C. § 875 (1994), and possession of a firearm after being
convicted of a misdemeanor crime of domestic violence. See 18
U.S.C.A. § 922(g)(9) (West 2000). He pled guilty to transmitting
threats to injure, went to trial on the firearms charge, and was con-
victed. The district court imposed concurrent sentences of sixty
months for the threats convictions, and a 120-month sentence for the
firearms conviction, making ninety-one months of the latter sentence
consecutive so as to impose a sentence at the bottom of the guideline
range of 151-188 months. Williams appeals his 151-month sentence.
We affirm.
Williams contends on appeal that (1) the evidence was insufficient
to support his conviction for the firearms charge; (2) the district court
erred in considering a firearm that was returned to him by police in
Nags Head, North Carolina, after they indicated they would investi-
gate his right to possess it; (3) the district court erred in enhancing his
offense level for possession of ten firearms, including three firearms
in the possession of his business partner; and (4) resentencing is
required under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Wil-
liams asserted a defense of entrapment by estoppel with respect to the
§ 922(g)(9) offense. See United States v. Aquino-Chacon, 109 F.3d
936, 938-39 (4th Cir. 1997) (defendant may raise defense of entrap-
ment by estoppel "when the government affirmatively assures him
that certain conduct is lawful, the defendant thereafter engages in the
conduct in reasonable reliance on those assurances, and a criminal
prosecution based on the conduct ensues," but the defendant "must
show that there was ‘active misleading’ in the sense that the govern-
ment actually told him that the proscribed conduct was permissible.").
We find that Williams failed to produce any evidence of active mis-
UNITED STATES v. WILLIAMS 3
leading on the part of a federal official. Consequently, the district
court did not err in denying his motion for acquittal. See United States
v. Romer, 148 F.3d 359, 364 (4th Cir. 1998) (setting out standard of
review), cert. denied, 525 U.S. 1141 (1999).
We find that the district court did not err in considering Williams’
possession of a Colt AR-15 semi-automatic rifle (the gun that was
returned to him by the police) in determining his base offense level
under U.S. Sentencing Guidelines Manual § 2K2.1(a)(1) (1998). We
also find that the district court did not clearly err in finding that Wil-
liams had constructive possession of three firearms that belonged to
him but were in the possession of his business partner at the time Wil-
liams was arrested. Because Williams was in possession of another
seven firearms, the court correctly added two levels under
§ 2K2.1(b)(1)(C) for an offense involving eight to twelve firearms.
Finally, we find that the Supreme Court’s decision in Apprendi
does not affect this case. Williams’ guideline range was 151-188
months. The statutory maximum sentence for possessing a firearm
after being convicted of a misdemeanor crime of domestic violence
is ten years. See 18 U.S.C.A. §§ 922(g)(9), 924(a)(2). Williams
received the maximum sentence of 120 months for the § 922(g)(9)
conviction. The statutory maximum sentence for an offense of making
threats to injury is sixty months. See 18 U.S.C. § 875(c). When the
sentence on the count with the highest statutory maximum is less than
the low point of the guideline range, the district court may impose a
consecutive sentence on one or more of the counts "to the extent nec-
essary to produce a combined sentence equal to the total punishment,"
i.e., within the guideline range. USSG § 5G1.2(d). The district court
followed this procedure. No factor considered by the district court
increased the statutory maximum for any of Williams’ offenses.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED