UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AMEER NASEER CULBREATH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Richard D. Bennett, District Judge. (CR-
03-223-RDB)
Submitted: April 22, 2005 Decided: June 1, 2005
Before LUTTIG, WILLIAMS, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Jensen E. Barber, LAW OFFICE OF JENSEN E. BARBER, P.C., Washington,
D.C., for Appellant. Thomas M. DiBiagio, United States Attorney,
Daphene R. McFerren, Deborah A. Johnston, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Ameer Naseer Culbreath of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.A.
§§ 922(g)(1) & 924(e)(1) (West 2000 & Supp. 2004) (Count 1), and
possession of a firearm with an obliterated serial number, in
violation of 18 U.S.C. § 922(k) (2000) (Count 2). The district
court sentenced him to a total of 170 months of imprisonment. On
appeal, he challenges the sufficiency of the evidence on Count 11
and asserts that his sentence violates his Sixth Amendment rights.
We affirm Culbreath’s convictions but vacate his sentence and
remand for resentencing.
Culbreath contends that the district court erred in
denying his motion for judgment of acquittal under Fed. R. Crim. P.
29 on Count 1 because the evidence was insufficient to prove that
he possessed the firearm and that the firearm traveled in
interstate commerce. We review the district court’s decision to
deny a Rule 29 motion de novo. United States v. Lentz, 383 F.3d
191, 199 (4th Cir. 2004), cert. denied, U.S. , 2005 WL 80797
(U.S. Apr. 18, 2005) (No. 04-8107). Where, as here, the motion was
based on insufficient evidence, “[t]he verdict of a jury must be
sustained if there is substantial evidence, taking the view most
1
Culbreath does not contest his conviction for possessing a
firearm with an obliterated serial number. See United States v.
Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well
settled rule that contentions not raised in the argument section of
the opening brief are abandoned.”).
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favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). We have reviewed the trial
testimony in the joint appendix, supplemental joint appendix, and
government supplemental appendix and are convinced that the
evidence was sufficient to convict Culbreath. See United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001) (discussing elements
of the offense).
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),
Culbreath contends that his Sixth Amendment right to a jury trial
was violated because he was sentenced on facts found by the court
and not by the jury. Because Culbreath did not object to his
sentence in the district court based on Blakely or United States v.
Booker, 125 S. Ct. 738 (2005), this court’s review is for plain
error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
In Booker, the Supreme Court held that the mandatory
manner in which the Federal Sentencing Guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750 (Stevens, J., opinion of the Court). The
Court remedied the constitutional violation by making the
Guidelines advisory through the removal of two statutory provisions
that had rendered them mandatory. Id. at 746 (Stevens, J., opinion
of the Court); id. at 756-57 (Breyer, J., opinion of the Court).
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Here, the district court sentenced Culbreath under the
mandatory Federal Sentencing Guidelines and applied one enhancement
based on facts found by a preponderance of the evidence.
Specifically, the court increased Culbreath’s base offense level by
three levels under U.S. Sentencing Guidelines Manual § 3A1.2(b)
(2002), based upon its finding that Culbreath assaulted a police
officer during the course of the arrest.2 In light of Booker and
Hughes, we find that the district court plainly erred in sentencing
Culbreath. Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Culbreath’s sentencing. 401 F.3d at 545
n.4; see generally Johnson v. United States, 520 U.S. 461, 468
(1997) (stating that an error is “plain” if “the law at the time of
trial was settled and clearly contrary to the law at the time of
appeal”).
Accordingly, although we affirm Culbreath’s convictions,
we vacate his sentence and remand for proceedings consistent with
Hughes.3 We dispense with oral argument because the facts and
2
Culbreath also received a two-level enhancement under USSG
§ 2K2.1(b)(4) because the firearm had an obliterated serial number.
Because the jury convicted Culbreath of possessing a firearm with
an obliterated serial number, this enhancement did not violate the
Sixth Amendment.
3
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767 (Breyer, J., opinion of the Court). On remand, the
district court should first determine the appropriate sentencing
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
range under the Guidelines, making all factual findings appropriate
for that determination. Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2004), and
then impose a sentence. Hughes, 401 F.3d at 546. If that sentence
falls outside the Guidelines range, the court should explain its
reasons for the departure as required by 18 U.S.C.A. § 3553(c)(2)
(West Supp. 2004). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
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