United States v. Ferguson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-5114

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN CLIVE FERGUSON, a/k/a Moshe Isreal,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-96-90)

Submitted: May 31, 2005 Decided: July 11, 2005

Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.

Charles Wyatt McKeller, Brevard, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Don D. Gast,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

John Clive Ferguson was found by a jury to be guilty of

robbery and aiding and abetting the robbery in violation of 18

U.S.C. § 2 and § 1951(b)(3) (1994), which prohibits willfully and

unlawfully obstructing, delaying and affecting commerce and the

movement of articles in commerce by robbery, one count of using a

firearm during and in relation to a crime of violence and aiding

and abetting such use in violation of 18 U.S.C. §§ 2, 924(c)(1)

(1994), and two counts of unlawfully possessing a shotgun in

violation of 26 U.S.C. §§ 5845(a)(1), 5861(d) (1994). On appeal,

Ferguson contends the evidence was insufficient to support the

three firearm convictions because the Government did not show the

firearm in question was operable or readily restorable to

operation. Ferguson further argues his sentence was improper

because the offense level was increased based upon facts not

charged in the indictment or presented to the jury. We affirm the

convictions and vacate the sentence and remand for resentencing.

When reviewing a sufficiency-of-the-evidence claim, the

verdict will 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

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849, 862 (4th Cir. 1996) (en banc). We note that with respect to

convictions under § 924(c) or §§ 5845(a)(1), 5861(d), there is no

requirement the Government establish the firearm in question be

operable or readily operable. See United States v. Yannott, 42

F.3d 999, 1006 (6th Cir. 1994) (Sections 5845(a)(1), 5861(d));

United States v. Willis, 992 F.2d 489, 491 n.2 (4th Cir. 1993)

(Section 924(c)); see also United States v. Jackson, 124 F.3d 607

(4th Cir. 1997) (it was sufficient if the Government showed the

firearm at issue was made from a shotgun with a barrel less than 18

inches in length and not registered). Accordingly, we find

sufficient evidence to support the three firearm convictions.

In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that Blakely v. Washington, 124 S. Ct. 2531

(2004) applies to the federal Sentencing Guidelines and the

Guidelines are advisory rather than mandatory. Ferguson preserved

the sentencing issue for appeal by arguing at sentencing that

Blakely and the pending Booker applied in his case.

Ferguson’s offense level for Counts 2, 4 and 5 was

affected by an increase by two levels to Counts 4 and 5 because

there was evidence the firearm’s serial number was obliterated.

This evidence was neither charged in the indictment nor submitted

to the jury. Because the district court overruled Ferguson’s

objection to the enhancement and applied the Sentencing Guidelines

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in a mandatory manner, the sentence must be vacated and remanded to

the district court for resentencing.*

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. On remand, the district court

should first determine the appropriate sentencing range under the

Guidelines, making all factual findings appropriate for that

determination. See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005) (applying Booker on plain error review). The court

should consider this sentencing range along with the other factors

described in 18 U.S.C. § 3553(a)(2000), and then impose a sentence.

Id. If that sentence falls outside the Guidelines range, the court

should explain its reasons for the departure as required by 18

U.S.C. § 3553(c)(2) (2000). Id. The sentence must be “within the

statutorily prescribed range and . . .reasonable.”

Id. at 546-47.

Accordingly, we affirm the convictions and vacate the

sentences and remand for resentencing consistent with the rule

announced in Booker. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

*
We note there is no error with respect to the 10 year
consecutive sentence imposed on the conviction for Count 3 because
this sentence is the minimum sentence required by statute for this
offense.

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materials before the court and argument would not aid the

decisional process.

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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