UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4712
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LINCOLN MONROE BROCK,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-429)
Submitted: January 27, 2006 Decided: February 28, 2006
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Lisa S. Costner, Winston-Salem, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Randall S. Galyon,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lincoln Monroe Brock was convicted by a jury of three counts
of distribution of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C); one count of distribution of five grams
or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B); one count of possession with intent to distribute five
grams or more of cocaine base, in violation of 21 U.S.C..
§§ 841(a)(1) and (b)(1)(B); and one count of possession of a
firearm by a person who has been convicted of a crime punishable by
imprisonment for a term exceeding one year, in violation of 18
U.S.C. § 922(g)(1) and 924(a)(2). He was sentenced to a total of
186 months imprisonment, followed by six years of supervised
release.
On appeal, Brock asserts that the district court erred in
denying his motion for judgment of acquittal as to the firearm
charge because the evidence presented by the government was
insufficient to prove that he possessed, used or carried the
firearm at issue.
We review de novo the denial of a Rule 29 motion for a
judgment of acquittal. See United States v. Ryan-Webster, 353 F.3d
353, 359 (4th Cir. 2003). We must sustain a jury verdict “if there
is substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc) (internal quotation marks omitted).
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We have defined “substantial evidence” as “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.” Id. And we “remain cognizant of the fact that the jury,
not the reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented.” Id. (internal
quotation marks and alteration omitted).
During execution of a search warrant at a residence believed
to belong to Brock, officers found 6.7 grams of cocaine base in a
closet in the front bedroom. A safe containing intimate
photographs of Brock and his wife were also in the closet. Letters
addressed to Brock from his wife and various other personal
documents bearing Brock’s name were found in a shoebox in the same
bedroom. The firearm, a 12-gauge shotgun, was found between the
bed and the closet in the same bedroom, with ammunition nearby. In
addition, the government presented evidence that Brock told a
federal agent that he had possessed the shotgun taken from him on
April 1, 2003, for three years.
We find that the evidence was sufficient to support the
firearm conviction based upon Brock’s possession of the 12-gauge
shotgun found in the bedroom. See United States v. Jackson, 124
F.3d 607, 610 (4th Cir. 1997) (Constructive possession exists when
“the defendant exercised, or had the power to exercise, dominion
and control over the item.” (internal quotation marks omitted)).
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Accordingly, the district court did not err in denying Brock’s
motion for judgment of acquittal and we affirm his conviction on
the count.
Brock next contends that he is entitled to be resentenced in
light of United States v. Booker, 125 S. Ct. 738 (2005), because
his sentence was enhanced based on facts not found by the jury in
violation of his Sixth Amendment rights.
In Booker, the Supreme Court held that the mandatory manner in
which the federal sentencing guidelines required courts to impose
sentencing enhancements based on facts found by the court by a
preponderance of the evidence violated the Sixth Amendment. See
543 U.S. at 750. The Court remedied the constitutional violation
by severing two statutory provisions and thereby making the
guidelines advisory. See id. at 756-67. After Booker, courts
must calculate the appropriate guideline range, consider the range
in conjunction with other relevant factors under the guidelines and
18 U.S.C. § 3553(a), and impose a sentence. If a district court
imposes a sentence outside the guideline range, the court must
state its reasons for doing so as required by 18 U.S.C. §
3553(c)(2). See United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 547. Because Brock
preserved his Sixth Amendment claim in the trial court, “we must
reverse unless we find this constitutional error harmless beyond a
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reasonable doubt, with the Government bearing the burden of proving
harmlessness.” United States v. Mackins, 315 F.3d 399, 405 (4th
Cir. 2003) (citations omitted); see United States v. White, 405
F.3d 208, 223 (4th Cir. 2005).
Here, the district court established a base offense level of
twenty-eight based upon a determination of the quantity of
controlled substances. See United States Sentencing Guideline
(“USSG”) §2D1.1. Because a firearm was possessed, the offense
level was increased by two pursuant to USSG § 2D1.1(b)(1), for a
total offense level of thirty. Brock was further found to have a
criminal history category of VI, based upon fourteen criminal
history points. Two of the fourteen criminal history points were
added pursuant to USSG § 4A1.1(e), based upon a finding that Brock
had committed the instant offense within two years of his release
from imprisonment. With a total offense level of thirty, and a
criminal history category of VI, Brock’s recommended guideline
range was 168 to 210 months. The district court treated the
guidelines as mandatory and imposed a total term of 186 months
imprisonment and eight years supervised release. However, the
district court noted that, without the enhancement for possession
of the weapon and the two additional criminal history points,
Brock’s total offense level would be 28 and his criminal history
would be V, resulting in a guideline range of 130 to 162 months
imprisonment, followed by a term of 6 years of supervised release.
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See United States v. Hammoud, 381 F.3d 316, 353 (4th Cir. 2004) (en
banc), judgment vacated, 125 S. Ct. 1051 (2005). Thus, the maximum
sentence under the guidelines without the judge-found facts was
below even the minimum sentence that could have been imposed under
the mandatory scheme. The government concedes that Booker error
occurred based upon the criminal history finding and that
resentencing is appropriate. We agree, and therefore vacate
Brock’s sentence and remand for resentencing.
Accordingly, we affirm Brock’s conviction, vacate his
sentence, and remand for resentencing in accordance with Booker.
We deny Booker’s motion to relieve counsel, supplemental motion to
relieve counsel, and motion for production of documents. 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 IN PART,
AND REMANDED
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