UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDY L. THORNTON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:04-cr-00225)
Submitted: November 13, 2006 Decided: December 11, 2006
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. Charles
T. Miller, United States Attorney, Hunter P. Smith, Jr., Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy L. Thornton appeals his conviction after a jury
trial and 262-month prison sentence for two counts of being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2000). Thornton raises five arguments on appeal.
Finding no error, we affirm.
First, Thornton argues that the evidence at trial was
insufficient to prove he constructively possessed the .45-caliber
pistol discovered under the passenger seat of the car he was
driving when he was arrested. We will affirm a conviction
challenged for sufficiency of the evidence if, viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt. See Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.
1996). A defendant challenging a conviction for sufficiency of the
evidence bears a “heavy burden,” see United States v. Hoyte, 51
F.3d 1239, 1245 (4th Cir. 1995), and “a decision [to reverse for
insufficient evidence] will be confined to cases where the
prosecution’s failure is clear.” Burks v. United States, 437 U.S.
1, 17 (1978). An appellate court must “consider circumstantial as
well as direct evidence, and allow the government 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
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(4th Cir. 1982) (citations omitted). This court does not review
credibility determinations on appeal. See Glasser, 315 U.S. at 80.
With these standards in mind, we find the evidence
sufficient to support the jury’s verdict. Thornton relies on
United States v. Blue, 957 F.2d 106 (4th Cir. 1992), where we
reversed a conviction after finding that the evidence was
insufficient to show possession of a firearm. In Blue, the
defendant was the passenger in a car, and a police officer observed
Blue’s shoulder dip as if he was reaching under the seat. A gun
was discovered under the seat. Id. at 108. Here, an officer
observed Thornton “dip down in the car” when he was stopped.
In contrast to Blue, Thornton was the driver of the
vehicle in which the firearm was found. That fact demonstrated
that Thornton had a greater degree of “dominion, or control over
the contraband itself or the premises or vehicle in which the
contraband is concealed,” than the defendant in Blue. Id. at 107.
Further, the owner of the car, who was a passenger at the time
police stopped Thornton, testified that the gun was not hers. She
also testified that Thornton later called her and suggested she
could have owned the gun. On this evidence, the jury was entitled
to conclude that Thornton constructively possessed the firearm.
See United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005).
Next, Thornton argues that the district court erred in
admitting fingerprint cards produced by various law enforcement
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agencies and maintained by the FBI. We review a district court’s
decision as to the admissibility of evidence for abuse of
discretion and will not find an abuse unless a decision was
“arbitrary and irrational.” United States v. Weaver, 282 F.3d 302,
313 (4th Cir. 2002).
We have reviewed the record, the district court’s
decision, and the briefs of the parties on appeal. We conclude
that the fingerprint cards were admissible either as business
records under Fed. R. Evid. 803(6) or as public records under Fed.
R. Evid. 803(8). See United States v. Weiland, 420 F.3d 1062, 1075
(9th Cir. 2005), cert. denied, 126 S. Ct. 1911 (2006); United
States v. Moore, 791 F.2d 566, 574 (7th Cir. 1986). Moreover,
their admission did not violate Thornton’s Confrontation Clause
rights, as elucidated in Crawford v. Washington, 541 U.S. 36
(2004). Crawford applies to “testimonial” evidence, and the
Supreme Court has suggested that some examples of hearsay “by their
nature were not testimonial — for example, business records.” Id.
at 56. We conclude that the fingerprint cards were not
“testimonial,” and that the admission of such business or public
records does not violate the rule in Crawford. See United
States v. Jamieson, 427 F.3d 394, 411 (6th Cir. 2005); United
States v. Cervantes-Flores, 421 F.3d 825, 832 (9th Cir. 2005);
Weiland, 420 F.3d at 1076-77; United States v. Rueda-Rivera, 396
F.3d 678, 680 (5th Cir. 2005).
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Next, Thornton argues that the district court lacked
jurisdiction over the case because there was insufficient evidence
to establish that he possessed the firearms in or affecting
interstate commerce. The Government introduced evidence at trial
establishing that the guns were manufactured in Ohio and traveled
in interstate commerce. Thornton concedes that his argument is
foreclosed by our decisions in United States v. Gallimore, 247 F.3d
134, 138 (4th Cir. 2001), and United States v. Wells, 98 F.3d 808,
811 (4th Cir. 1996). We follow these precedents and reject
Thornton’s argument.
Fourth, Thornton argues that the district court violated
his Sixth Amendment rights, as defined in United States v. Booker,
543 U.S. 220 (2005), by enhancing his sentence pursuant to the
Armed Career Criminal Act, 18 U.S.C. § 924(e) (2000), when his
prior convictions were not submitted to the jury or proved beyond
a reasonable doubt. Thornton concedes that we rejected this
specific argument in United States v. Cheek, 415 F.3d 349, 352-54
(4th Cir.), cert. denied, 126 S. Ct. 640 (2006). Again, we rely on
our precedent and reject Thornton’s argument.
Finally, Thornton argues that his 262-month sentence is
unreasonable. This court reviews a district court’s sentence for
reasonableness. United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005). “Consistent with the remedial scheme set forth in
Booker, a district court shall first calculate (after making the
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appropriate findings of fact) the range prescribed by the
guidelines.” Id. at 546. Thornton conceded at sentencing that, if
the Armed Career Criminal Act applied, the district court properly
calculated the advisory guideline range of 262 to 327 months’
imprisonment. Next, the district court must consider this range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a sentence.
“[A] sentence imposed ‘within the properly calculated Guidelines
range . . . is presumptively reasonable.’” United States v. Green,
436 F.3d 449, 456-57 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006) (quotations omitted).
“The district court need not discuss each factor set
forth in § 3553(a) ‘in checklist fashion;’ ‘it is enough to
calculate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.’” United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006) (quoting United States v. Dean, 414 F.3d 725,
729 (7th Cir. 2005)). The court sentenced Thornton at the low end
of the advisory guideline range. His sentence, therefore, is
presumptively reasonable. Thornton has not overcome this
presumption.
For these reasons, we affirm Thornton’s conviction and
sentence. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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