UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4787
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOMINGO ROMERO MOLINA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (CR-03-53)
Submitted: June 22, 2005 Decided: August 25, 2005
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Robert J. Harris, Strasburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, William F. Gould, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Domingo Romero Molina appeals his jury convictions of
conspiracy to distribute and possess with intent to distribute 500
grams or more of methamphetamine and possession of a firearm in
furtherance of a drug trafficking crime and the resulting 248-month
sentence. Molina does not attack his conspiracy conviction on
appeal, but asserts the evidence was insufficient to support his
firearm conviction. He also asserts that his sentence is incorrect
under Blakely v. Washington, 542 U.S. 296 (2004). We affirm
Molina’s convictions but vacate and remand his sentence.
When an Appellant challenges the sufficiency of the
evidence at trial, we must sustain a jury’s verdict “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); United States v. Wills, 346 F.3d 476, 495 (4th Cir.
2003), cert. denied, 124 S. Ct. 2906 (2004). Substantial evidence
is defined as “that evidence which ‘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.
Newsome, 322 F.3d 328, 333 (4th Cir. 2003) (quoting United
States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996)). The court
reviews both direct and circumstantial evidence and permits “the
government the benefit of all reasonable inferences from the facts
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proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
“[A]n appellate court’s reversal of a conviction on
grounds of insufficiency of evidence should be ‘confined to cases
where the prosecution’s failure is clear.’” United States v.
Jones, 735 F.2d 785, 791 (4th Cir. 1984) (quoting Burks v. United
States, 437 U.S. 1, 17 (1978)). Witness credibility is within the
sole province of the jury, and the court will not reassess the
credibility of testimony. United States v. Saunders, 886 F.2d 56,
60 (4th Cir. 1989).
Molina alleges that the evidence presented at trial to
support his conviction of possession of a firearm in relation to a
drug trafficking offense “was just too skimpy.” The evidence
supporting Molina’s firearm conviction came from testimony from
other participants in the conspiracy. The gist of this testimony
was that Molina accepted a firearm as compensation for a drug debt
owed him by Richard Lee Richie. Richie’s testimony was
corroborated by other witnesses. With the above standards in mind,
we find this evidence sufficient to support his firearm conviction
and affirm it.
Molina next asserts his sentence is improper under
Blakely. Both he and the Government assert that his sentence
should be vacated and remanded. We agree. While we find no Sixth
Amendment error in his sentencing, we conclude that United States
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v. White, 405 F.3d 208, 223 (4th Cir. 2005), requires us to vacate
and remand Molina’s sentence because he has demonstrated “that he
suffered actual prejudice from being sentenced under a mandatory
guidelines regime.” After pronouncing Molina’s sentence, the court
stated:
Now, if the Guidelines were not applicable and the
court was imposing a sentence without considering the
Guidelines, the court would impose a sentence of one
hundred and twenty (120) months for count one and sixty
(60) months for the gun count, to run consecutively, for
a total of one hundred eighty (180) months, in addition
to what the court has had to impose under the Guidelines.
(JA 597). Thus, unlike the sentencing court in White, the district
court in this case made “statements at sentencing indicating that
it wished to sentence [Molina] below the guideline range but that
the guidelines prevented it from doing so.” White, 405 F.3d at
223-24. We therefore conclude that Molina has shown under White
that the treatment of the Sentencing Guidelines as mandatory
affected the district court’s determination of the sentence it
imposed. For that reason, we vacate Molina’s sentence and remand
for resentencing.
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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