UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4651
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD C. LEGGETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (CR-03-138)
Submitted: March 30, 2005 Decided: May 9, 2005
Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Larry M. Dash,
Assistant Federal Public Defender, Meghan S. Skelton, Research and
Writing Attorney, Norfolk, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Lisa R. McKeel,
Assistant United States Attorneys, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward C. Leggett was convicted of possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2000),
and possession with intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (2000). He was sentenced to concurrent
terms of imprisonment of 120 months and 165 months, respectively,
to be followed by concurrent three-year and eight-year periods of
supervised release. Leggett appeals his convictions and sentence.
Leggett contends there was insufficient evidence to
support his convictions. We review the district court’s decision
to deny a motion for judgment of acquittal de novo. United
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If the
motion was based on insufficiency of the evidence, the verdict must
be sustained if there is substantial evidence, taking the view most
favorable to the government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is
evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc).
To prove a violation of 18 U.S.C. § 922(g) (2000), the
government must show that: “(1) the defendant previously had been
convicted of a crime punishable by a term of imprisonment exceeding
one year; (2) the defendant knowingly possessed . . . the firearm;
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and (3) the possession was in or affecting commerce, because the
firearm had traveled in interstate or foreign commerce.” United
States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).
Because Leggett stipulated that he was a convicted felon and that
the firearm had traveled in interstate commerce, the government
only needed to prove Leggett knowingly possessed the firearm.
To convict Leggett of possession with the intent to
distribute cocaine base, the government had to prove that Leggett:
(1) knowingly, (2) possessed the cocaine, (3) with the intent to
distribute it. Burgos, 94 F.3d at 873. Intent to distribute can
be inferred if the amount of drugs found exceeds an amount
associated with personal consumption. See United States v. Wright,
991 F.2d 1182, 1187 (4th Cir. 1993).
As to both charges, possession may be actual or
constructive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir.
1992). 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); United States v. Schocket, 753 F.2d
336, 340 (4th Cir. 1985). Possession may be established by direct
or circumstantial evidence. Schocket, 753 F.2d at 340.
When the evidence is viewed in the light most favorable
to the government, we conclude there was sufficient evidence from
which a jury could reasonably infer Leggett constructively
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possessed the firearm on July 22, 2003, and the cocaine base on
November 17, 2003. Accordingly, we affirm Leggett’s convictions.
Leggett also appeals his sentence, arguing that
Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the
sentencing guidelines. Leggett preserved this issue for appeal by
raising it in the district court. In United States v. Booker, 125
S. Ct. 738 (2005), the Supreme Court held that Blakely applies to
the federal sentencing guidelines and that the guidelines are
advisory rather than mandatory. In light of the Court’s decision
in Booker, we vacate Leggett’s sentence and remand the case for
resentencing.
In sum, we find no reversible error with the convictions,
but we vacate Leggett’s sentence and remand for resentencing in
accordance with Booker. We also deny Leggett’s motion to remove
counsel and proceed on appeal pro se. 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 IN PART;
VACATED AND REMANDED IN PART
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