UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4813
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH B. LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-05-40)
Submitted: June 22, 2006 Decided: July 18, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles A. Gavin, BLACKBURN, CONTE, SCHILLING & CLICK, P.C.,
Richmond, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Alexandria, Virginia; Angela Mastandrea-Miller, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Lewis appeals his conviction and 120-month
sentence for possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(1). On appeal Lewis argues that there was
insufficient evidence to sustain his conviction and that the
district court erred in applying a four-level enhancement pursuant
to U.S.S.G. § 2K2.1(b)(5) for possessing the firearm in connection
with another felony offense. Finding no reversible error, we
affirm Lewis’s conviction and sentence.
I.
On September 1, 2004, federal agents executed a search
warrant for a residence leased to Michele Campbell at 2286 Afton
Avenue in Richmond, Virginia. The agents recovered more than
$5,000 cash, over 170 grams of crack cocaine, and assorted drug
packaging paraphernalia. Four firearms were also recovered, one of
which was a loaded .357 caliber revolver. On January 15, 2005,
Lewis was indicted on single count of possession of a firearm (the
revolver) by a convicted felon, 18 U.S.C. § 922(g)(1).
Lewis was tried before a jury on April 19 and 20, 2005.
To prove that Lewis possessed the revolver, the government
presented evidence that Lewis’s fingerprint was found on the
firearm. It also presented the testimony of Campbell, the lessee
of the residence at 2286 Afton Avenue. Campbell had previously
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pled guilty to drug charges arising from the September 1 search,
and, pursuant to her plea agreement, she testified to the following
facts: Lewis became a regular visitor at 2286 Afton Avenue soon
after Campbell leased it in July 2004. A shooting occurred outside
the residence on August 14, 2004. A few days later, Lewis showed
the .357 revolver, which he had just purchased, to Campbell in her
living room. In the latter half of August 2004 Campbell personally
observed Lewis in possession of the revolver on seven to eight
occasions. She also knew the various places inside the residence
where Lewis stored the revolver and heard Lewis refer to the
revolver as his “baby.” The last time she saw Lewis with the
revolver was two days before the September 1 search. On that date
she observed him place the revolver in his waistband. Campbell
also testified that crack was sold from the residence, which “was
like a grocery store, people in and out.” J.A. 63. On cross-
examination Campbell testified that she was incarcerated at the
time of Lewis’s trial; she abused crack and alcohol around the time
of the September 1 search; she had previously withheld information
from the agents in connection with the September 1 search; and she
had a prior larceny conviction for stealing baby formula. At the
close of the government’s case, Lewis moved for a judgment of
acquittal, but the district court denied the motion. Lewis
presented no evidence, and the jury returned a guilty verdict.
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The pre-sentence investigation report (PSR) calculated
Lewis’s base offense level at twenty. It also recommended a four-
level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) for possessing
the firearm in connection with another felony offense. The
recommended guideline range was 100 to 125 months. Lewis objected
to the PSR’s four-level enhancement recommendation on the basis
that the evidence did not show he possessed the revolver in
connection with drug sales. At Lewis’s sentencing hearing the
government presented testimony from one of the agents who executed
the search warrant and later interviewed Campbell. The agent
testified that Campbell had told him that Lewis sold drugs from
Campbell’s residence. Campbell did not, however, tell the agent
that Lewis had sold drugs between mid-August and September 1, 2004,
while he possessed the revolver. She only generally stated that
she saw Lewis selling drugs from the residence between July and
September. The district court found that Lewis possessed the
revolver in connection with drug trafficking and therefore applied
the recommended four-level enhancement. Lewis was sentenced to 120
months in prison, the statutory maximum sentence for a § 922(g)(1)
conviction. This appeal followed.
II.
Lewis argues on appeal that his conviction cannot be
sustained because there was insufficient evidence at trial to show
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that he possessed the revolver. In reviewing the sufficiency of
the evidence to support a conviction, the relevant question is
whether “any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt.” United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989). We consider “the evidence in the
light most favorable to the government, assuming the jury weighed
all of the evidence, resolved all conflicts in the testimony, and
drew all reasonable inferences from the facts.” United States v.
Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Accordingly, we do
not review the credibility of witnesses. Id. In the present case,
we assume, as we must, that the jury credited Campbell’s testimony
about Lewis’s possession of the revolver. In addition to
Campbell’s testimony, the jury also heard evidence that Lewis’s
fingerprint was found on the firearm. On the basis of this
evidence, a rational juror could have found beyond a reasonable
doubt that Lewis possessed the revolver. The evidence was
therefore sufficient to sustain Lewis’s § 922(g)(1) conviction.
III.
Lewis also argues that the district court erred in
applying the § 2K2.1(b)(5) four-level enhancement because there is
no evidence connecting the firearm to any drug sales. Under the
now-advisory U.S. Sentencing Guidelines, courts must calculate the
applicable guideline range, making all necessary findings of fact
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by a preponderance of evidence, before imposing a sentence. See
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). A
district court’s factual finding at sentencing will not be set
aside unless it is clearly erroneous. United States v. Sayles, 296
F.3d 219, 224 (4th Cir. 2002). In this case, the following facts
tend to show that Lewis possessed the revolver in connection with
drug trafficking: Campbell testified that Lewis possessed the
revolver between mid-August and September 1, 2004; Campbell told
agents that Lewis sold drugs from the house between July 2004 and
September 2004; the revolver was found in the house where drug
trafficking took place; the revolver was found during a search that
also turned up more than 170 grams of crack and assorted drug
packaging paraphernalia; and Lewis was present at the house when
agents arrived to conduct the search. On the basis of these facts,
the district court reasonably could have found that Lewis was
dealing drugs during the time that he was in possession of the
firearm. The district court’s finding to that effect was not
clearly erroneous.
***
For the foregoing reasons we affirm Lewis’s conviction
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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