UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4985
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL DUPREE-BARTON FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CR-04-172)
Submitted: November 18, 2005 Decided: January 4, 2006
Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Steven D. Briglia, BRIGLIA & HUNDLEY, PC, Fairfax, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael E.
Rich, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Daniel Dupree-Barton Foster of
possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (West 2000 & Supp. 2005).
Foster was sentenced to forty-six months in prison. He now
appeals. We affirm the conviction but vacate the sentence and
remand for resentencing.
I
Foster first contends that the evidence was insufficient
to convict him. “A defendant challenging the sufficiency of the
evidence to support his conviction ‘bears a heavy burden.’” United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (quoting
United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995)). In
deciding whether sufficient evidence supports a conviction, we
consider whether, taking the evidence in the light most favorable
to the Government, substantial evidence supports the verdict.
Glasser v. United States, 315 U.S. 60, 80 (1942). We review both
direct and circumstantial evidence and permit “the [G]overnment the
benefit of all reasonable inferences from the facts proven to those
sought to be established.” United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). Witness credibility is within the sole
province of the jury, and we will not reassess the credibility of
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testimony. United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989).
To sustain a conviction under § 922(g)(1), the Government
must establish that: the defendant was a convicted felon; he
knowingly possessed the firearm; and the firearm traveled in
interstate commerce. United States v. Langley, 62 F.3d 602, 606
(4th Cir. 1995) (en banc). Here, Foster stipulated that he was a
convicted felon and that the ammunition and firearm had the
requisite nexus to interstate commerce. The issue, then, was
whether there was substantial evidence establishing possession.
At trial, Arlington County, Virginia, Detective Darien
Cupka testified that on January 3, 2003, he attempted to stop a
Buick. The driver of the Buick disregarded Cupka’s repeated
instructions to stop the car, and a chase ensued. At one point,
the driver, Jonathan Baranowski, lost control of the car, which
spun, hit a sign post, crossed a median, and came to a stop. The
passenger pointed a black semiautomatic handgun at Cupka. Cupka
identified Foster as the passenger. The driver gained control of
the car, which proceeded south in the northbound lane of a major
road toward Crystal City. Soon, a police dispatcher broadcast that
an off-duty officer had located a vehicle at Crystal City from
which two suspects had fled. Cupka drove to Crystal City, where he
met the officer. He testified that no more than three minutes
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elapsed between the time the Buick left the scene and his arrival
at Crystal City.
Officer Philip Mulvaney testified that he was in his
personal car when he observed the Buick driving recklessly. He
decided to follow the Buick, which parked in front of a dumpster in
Crystal City. Mulvaney parked his car nearby. He noticed that two
men were inside the Buick. Mulvaney heard a metallic sound, then
saw the two men running from the Buick. He identified Foster and
Jonathan Baranowski as the two men. When Cupka arrived, he and
Mulvaney walked to the dumpster. Inside the virtually empty
dumpster, they saw a black semiautomatic handgun resembling the gun
that Foster had pointed at Cupka. Forensic tests showed that it
was a loaded Hi Point 9 millimeter semiautomatic.
Carlita Tuck testified that she had pled guilty to making
false statements in connection with the acquisition of a handgun.
She stated that she had purchased four handguns, which she had
given Anthony Baranowski. Anthony Baranowski is the brother of
Jonathan Baranowski. The handguns were all Hi Point 9 millimeter
semiautomatics.
This testimony was sufficient to convict Foster. Cupka
testified that Foster pointed a black semiautomatic handgun at him
from inside a Buick. Minutes later, Mulvaney heard a metallic
sound and saw Foster and Baranowski running from the Buick.
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Mulvaney and Cupka then discovered a gun matching the description
of the one that Foster had pointed at Cupka in a nearby dumpster.1
II
Foster also claims that his forty-six month sentence
violates the rule announced in United States v. Booker, 125 S. Ct.
738 (2005). Because Foster raised this Sixth Amendment claim
below, our review is de novo. See United States v. Mackins, 315
F.3d 399, 405 (4th Cir. 2003).
Foster’s base offense level was fourteen. See U.S.
Sentencing Guidelines Manual § 2K2.1(a)(6) (2003). Two levels were
added for obstruction of justice for reckless endangerment because
Foster pointed a gun at a law enforcement officer. See USSG
§ 3C1.2. Foster’s total offense level was 16, his criminal history
category was V, and his guideline range was 41-51 months. Without
the enhancement, Foster’s total offense level would have been 14,
1
Several months after trial, the Government informed defense
counsel that Tuck had told the Government that she had lied at
Foster’s trial. Tuck had purchased the guns but had given them to
Earl Moore. Moore told her that he then transferred one of the
guns to Anthony Baranowski. Anthony Baranowski informed the
Government that he purchased the gun from Moore on Foster’s behalf.
Foster contends that Tuck’s admitted perjury casts doubt on
the sufficiency of the evidence to the extent that reversal is
required. We disagree. Custody of the gun prior to Foster’s
possession of it is perhaps of some interest, but irrelevant to the
fact that Cupka identified Foster as the person who pointed the gun
at him. Had Tuck not testified, Foster’s conviction would stand,
for possession is established through Cupka’s and Mulvaney’s
testimony alone.
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and his guideline range would have been 33-41 months in prison.
Because Foster’s sentence of forty-six months’ imprisonment exceeds
the maximum authorized by the facts found by the jury, there was a
Sixth Amendment violation requiring resentencing. See United
States v. Evans, 416 F.3d 298, 300 (4th Cir. 2005).2
III
We accordingly affirm Foster’s conviction but vacate his
sentence and remand for resentencing in accordance with Booker.3
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
2
As we have stated, “We of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of [Foster’s] sentencing.” United States v. Hughes, 401 F.3d
540, 545 n.4 (4th Cir. 2005).
3
Although the sentencing guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[them] 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 at 546. The court should consider this
range along with the other factors identified at 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005), and then impose a sentence.
Id. If that sentence falls outside the guideline range, the court
should explain its reasons for imposing a non-guideline sentence as
required by 18 U.S.C.A. § 3553(c)(2). Id. The sentence must be
“within the statutorily prescribed range . . . and reasonable.”
Id. at 546-47.
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