United States v. Gattis

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4898

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PRESTON GATTIS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-02-1156)

Submitted: August 31, 2005 Decided: September 26, 2005

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. Tracy Brown, THE BROWN LAW FIRM, Charleston, South Carolina, for
Appellant. Lee Ellis Berlinsky, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Preston Gattis, Jr., appeals his convictions and

420-month sentence imposed after a jury found him guilty of drug

and firearm offenses.* Gattis’ counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), challenging the

admission of certain evidence and the sufficiency of the evidence

supporting three of Gattis’ convictions. Gattis has filed two pro

se supplemental briefs raising these issues and asserting that the

court should have dismissed a juror before deliberations began,

that he did not have sufficient time to review the presentence

report, and that, in light of the Supreme Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005), his sentence as an

armed career criminal under 18 U.S.C.A. § 924(e) (West 2000 & Supp.

2005), violates the Sixth Amendment. We affirm.

Counsel and Gattis assert that the district court erred

by admitting evidence of the drugs recovered from the controlled

buys because they allege that the evidence introduced at trial was

*
Specifically, Gattis was convicted of distribution of less
than five grams of crack cocaine on January 8, 2002 (Count 1), and
January 11, 2002 (Count 2), in violation of 21 U.S.C. § 841(a)(1)
(2000); distribution of five grams or more of crack on February 16,
2002 (Count 3), in violation of § 841(a)(1); possession with intent
to distribute five grams or more of crack and less than 500 grams
of cocaine on February 23, 2002 (Count 4), in violation of
§ 841(a)(1); using and carrying firearms during and in relation to,
and possessing firearms in furtherance of, a drug trafficking crime
(Count 5), in violation of 18 U.S.C.A. § 924(c)(1)(A) (West 2000 &
Supp. 2005); and possession of four firearms as a convicted felon
(Count 6), in violation of 18 U.S.C. § 922(g)(1) (2000).

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not the evidence collected at the scene. We review evidentiary

rulings for an abuse of discretion. United States v. Jones, 356

F.3d 529, 535 (4th Cir.), cert. denied, 541 U.S. 952 (2004). Our

review of the trial transcript leads us to conclude that the

district court did not abuse its discretion in concluding that the

Government sufficiently established a chain of custody for the

drugs and in admitting the evidence at trial. See id.

Next, counsel and Gattis claim that the district court

erred by failing to grant the motion for judgment of acquittal

pursuant to Fed. R. Crim. P. 29, on three counts--possession with

intent to distribute five grams or more of crack cocaine and less

than 500 grams of cocaine, possession of firearms by a convicted

felon, and using and carrying firearms during and in relation to,

or possessing firearms in furtherance of, a drug trafficking crime.

These convictions were based upon the evidence seized during the

execution of a search warrant for the residence located at 130 Deep

Creek Trail, Cross, South Carolina. Gattis asserts that he did not

live at that address and therefore did not have constructive

possession of the guns and drugs recovered during the search.

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, 125 S. Ct. 1828 (2005). 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

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view most favorable to the Government, to support it.” Glasser v.

United States, 315 U.S. 60, 80 (1942). This court “ha[s] defined

‘substantial evidence,’ in the context of a criminal action, 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) (en banc)). Taking the evidence

in the light most favorable to the Government, we conclude that the

evidence supports the jury’s verdict on the challenged counts. See

United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003)

(discussing constructive possession).

Gattis also asserts that, in light of Booker, the

district court violated his Sixth Amendment rights by sentencing

him as an armed career criminal under § 924(e) and U.S. Sentencing

Guidelines Manual § 4B1.4 (2003). Because Gattis did not object on

this ground in the district court, we review this claim for plain

error and find none. See United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005) (stating standard of review). Gattis’ claim is

foreclosed by our recent decision in United States v. Cheek, 415

F.3d 349, 350-51 (4th Cir. 2005) (holding that application of armed

career criminal enhancement falls within exception for prior

convictions when there is no dispute as to fact or characterization

of those convictions).

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 In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none. We have

carefully considered the remaining claims raised in Gattis’ pro se

supplemental briefs and conclude that they are without merit.

Accordingly, we affirm Gattis’ convictions and sentence. We also

deny Gattis’ motions to relieve his attorney (as supplemented), to

strike counsel’s Anders brief, and to compel discovery of trial

exhibits, deny counsel’s motion to withdraw, and deny as moot

Gattis’ motions to extend the time to file a brief and for the

preparation of a transcript.

This court requires that counsel inform his client, in

writing, of his right to petition the Supreme Court of the United

States for further review. If the client requests that a petition

be filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to

withdraw from representation. Counsel’s motion must state that a

copy thereof was served on the client. 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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