UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON LAMONT WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-03-120)
Submitted: January 27, 2006 Decided: February 28, 2006
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Flax, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Michael C.
Wallace, Sr., Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jason Lamont Williams was convicted by a jury of
possession with intent to distribute heroin, 21 U.S.C. § 841
(2000), felon in possession of a firearm, 18 U.S.C. § 922(g)(1)
(2000), and possession of a firearm in furtherance of a drug
trafficking offense, 18 U.S.C. § 924(c) (2000). He was sentenced
to 101 months of imprisonment. On appeal, Williams (1) challenges
the sufficiency of the evidence to support his convictions; (2)
argues that his convictions under both § 924(c) and § 922(g)(1)
violate the Double Jeopardy Clause; and (3) contends he was
sentenced in violation of United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005). For the reasons that follow, we affirm.
Williams first argues on appeal that there was
insufficient evidence to support his convictions. A defendant
challenging the sufficiency of the evidence “bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). To
determine if there was sufficient evidence to support a conviction,
this court considers 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). The
court reviews both direct and circumstantial evidence and permits
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
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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). We have reviewed the parties’
arguments and the materials submitted in the joint appendix and
conclude that sufficient evidence supports the jury’s verdict on
all counts.*
Next, Williams argues that his convictions under both
§ 924(c) and § 922(g)(1) are prohibited by the Double Jeopardy
Clause. While it is true that the Double Jeopardy Clause of the
Fifth Amendment prohibits multiple punishment for the same offense,
see United States v. Johnson, 32 F.3d 82, 84 (4th Cir. 1994), two
offenses are not the “same” for double jeopardy purposes if one
offense requires proof of an element not included as proof of the
other offense. See Blockburger v. United States, 284 U.S. 299, 304
(1932). Because § 924(c) requires possession of a firearm “in
furtherance of” a drug trafficking crime, not just mere possession,
and a violation of § 922(g) requires that the defendant be a
previously convicted felon, punishment for a violation of both
offenses does not violate the Double Jeopardy Clause. See United
*
To the extent Williams argues that the Government failed to
prove that he knew that his possession of a gun violated federal
law, we find this argument without merit. See United States v.
Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc) (rejecting
notion that the Government is required to prove knowledge of felony
status).
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States v. Johnson, 977 F.2d 1360, 1375 (10th Cir. 1992) (collecting
cases).
Last, Williams argues that he was sentenced in violation
of Booker. In Booker, the Supreme Court concluded the federal
sentencing guidelines’ requirement that courts impose sentencing
enhancements based on facts found by the judge by a preponderance
of the evidence violated the Sixth Amendment. Booker, 125 S. Ct.
at 746, 750. The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West
Supp. 2005) (requiring sentencing courts to impose a sentence
within the applicable guideline range), and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2005) (setting forth appellate standards of
review for guideline issues), thereby making the guidelines
advisory. Booker, 125 S. Ct. at 756-57. The guidelines are now
advisory, and the district court may impose a sentence within the
range prescribed by the statute of conviction, as long as the
sentence is reasonable. Id.
When a Booker sentencing claim is raised for the first
time on appeal, this court reviews for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To meet the
plain error standard: (1) there must be an error; (2) the error
must be plain; and (3) the error must affect substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993). If the three
elements of the plain error standard are met, the court may
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exercise its discretion to notice error only if the error seriously
affects “the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736 (citation omitted). Because Williams’
federal guidelines range was not increased based on judicial
factfinding, we find that no Sixth Amendment violation occurred.
With respect to the mandatory application of the
guidelines, because Williams did not object below, this claim is
also reviewed for plain error. See United States v. White, 405
F.3d 208, 215 (4th Cir. 2005). Here, the sentencing transcript
contains no nonspeculative basis on which this court could conclude
that the district court would have sentenced Williams to a lesser
sentence had the court proceeded under an advisory guideline
regime. Thus, we find that Williams has failed to demonstrate that
the plain error in sentencing him under a mandatory guideline
scheme affected his substantial rights. See id. at 225.
Accordingly, we affirm Williams’ convictions and
sentence. 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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