Vacated by Supreme Court, March 7, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4838
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID MAURICE FULKS, a/k/a David Maurice
Wellington,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-02-292)
Submitted: August 30, 2004 Decided: October 14, 2004
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Michael
A. DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Maurice Fulks, a/k/a David Maurice Wellington,
appeals his judgment and sentence for two counts of possessing a
firearm and one count of possessing ammunition after having been
convicted of a crime punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2000). The district court sentenced Fulks to concurrent
terms of fifty-eight months in prison followed by three years of
supervised release. Fulks challenges the district court’s decision
to enhance his sentence pursuant to U.S. Sentencing Guidelines
Manual § 2K2.1(b)(1)(A) (2002) on the grounds that the offense
involved between three and seven firearms. Although not contesting
he possessed two firearms in connection with the offense, he argues
the Government failed to introduce sufficient evidence to establish
that he possessed a third firearm found in a desk at his workplace.
Finding no error, we affirm.
The district court’s factual findings are reviewed for
clear error. United States v. Love, 134 F.3d 595, 606 (4th Cir.
1998). Possession does not have to be actual or exclusive;
constructive or joint possession is sufficient. United States v.
Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001). Constructive
possession exists when the defendant exercised, or had the power to
exercise, dominion and control over the item. United States v.
Jackson, 124 F.3d 607, 610 (4th Cir. 1997) (quotations omitted).
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Fulks notes there was no physical evidence connecting him with the
revolver and that a number of other employees had access to the
desk in which the firearm was found. However, the gun was found in
a desk bearing a business card holder with his business cards, and
it was resting on a letter bearing his signature. Moreover, it was
seized just after Fulks left the premises and was found with a
speed loader that fit into the weapon. Therefore, the district
court did not clearly err in finding Fulks possessed a total of
three firearms and in applying the two-level enhancement pursuant
to USSG § 2K2.1(b)(1)(A).
Accordingly, we affirm Fulks’s convictions and 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
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