UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4313
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE TIAWAN BRITT,
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-03-184)
Submitted: November 22, 2006 Decided: February 13, 2007
Before MICHAEL and GREGORY, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Douglas Cannon, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Tiawan Britt was tried and convicted for various
drug and firearm offenses. On appeal Britt asserts that the
district court abused its discretion by denying his motion to sever
counts charging him with being a felon in possession of a firearm.
Britt also argues that his convictions are not supported by
substantial evidence. Because these arguments lack merit, we
affirm his convictions. Britt also asserts that the district court
committed plain error in calculating his offense level at
sentencing. We agree and accordingly vacate Britt’s sentence and
remand for resentencing.
I.
The relevant events began on February 13, 2003, when
police conducted the first of two searches of a house located at
1507 McConnell Road in Greensboro, North Carolina. The police went
to the house to investigate complaints of drug dealing. A woman
who identified herself as Juanita Stacee answered the officers’
knock at the door. When the officers asked if they could enter the
house, Stacee summoned Britt who then motioned the officers inside
and consented to a search of the premises. While no drugs or
firearms were found on Britt’s person, officers found a .38 caliber
revolver, 4.8 grams of crack, baggies of marijuana, and scales in
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various rooms throughout the house. Britt was arrested as a result
of the search.
On April 30, 2003, the Greensboro police returned to the
house and executed a search warrant. Although Britt was not
present, seven others were. This search turned up marijuana,
crack, various kinds of ammunition, and numerous firearms. Britt’s
fingerprints were found on a number of documents seized from the
house, including water and sewer bills, a tax assessment, and the
purchase order for the firing pin of a 9mm semi-automatic pistol
also found during the search.
In a superceding indictment filed on October 28, 2003,
Britt was charged with eight firearm and drug-related counts. All
but one of the charges resulted from the searches of the McConnell
Road house. Unlike the other charges, Count Five resulted from a
search of Britt’s car on February 27, 2003, and charged him with
being a convicted felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Counts One and Eight charged Britt with two
additional § 922(g) violations for possessing the .38 caliber
revolver recovered in the February 13 search and possessing the 9mm
semi-automatic pistol and accompanying ammunition found on April
30. On November 12, 2003, Britt filed a motion pursuant to Fed. R.
Crim. P. 14(a) requesting that all three § 922(g) counts be severed
from trial of the remaining five offenses. Britt argued that he
would suffer prejudice if the jury learned that he was a convicted
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felon. At a hearing on December 2, 2003, the district court
granted Britt’s motion to sever the felon-in-possession charge that
arose out of the car search while denying his motion as to the
counts that resulted from the McConnell Road searches. The
government later dismissed the severed charge.
A jury ultimately found Britt guilty of possession of a
firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1)(Count One); possession with intent to distribute
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)
(Count Two); possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(Count Three); maintaining a place for the purposes of
manufacturing, distributing, and using controlled substances in
violation of 21 U.S.C. §§ 856(a)(1) and (b) (Count Four); and
possession of ammunition and a firearm by a felon in violation of
18 U.S.C. § 922(g)(1)(Count Eight).
Britt appeals his convictions and sentence, arguing first
that the district court abused its discretion by denying his motion
to sever Counts One and Eight. He also contends that there was
insufficient evidence for any rational trier of fact to find beyond
a reasonable doubt that he possessed the firearms and drugs for
which he was convicted. Finally, Britt challenges the district
court’s calculation of both his offense level and criminal history
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category under the then-mandatory Sentencing Guidelines. We review
each claim in turn.
II.
Joinder of offenses is permitted under Fed. R. Crim. P.
8(a) when the crimes charged “are of the same or similar character,
or are based on the same act or transaction, or are connected with
or constitute parts of a common scheme or plan.” A defendant
appealing the denial of his Rule 14(a) motion for severance must
show that the joinder was “so manifestly prejudicial that it
outweighed the dominant concern with judicial economy[.]” United
States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995) (quoting United
States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980)). We review
the district court’s refusal to sever Counts One and Eight for
abuse of discretion. United States v. Foutz, 540 F.2d 733, 736
(4th Cir. 1976).
The common factual basis connecting all of the offenses
for which Britt was tried was that he maintained control over the
McConnell Road house and the activities occurring there. On appeal
Britt does not dispute that the felon-in-possession of firearms
offenses charged in Counts One and Eight rely on evidence that
overlaps almost completely with the evidence introduced as to the
rest of the offenses at trial. Instead, Britt simply maintains
that considerations of judicial economy do not outweigh the
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“overwhelming prejudice” that joinder caused by allowing the jury
to learn of his prior felony conviction, a fact that would not
otherwise have been admissible in the government’s case-in-chief.
Appellant’s Br. at 15.
Britt has failed to show that any possibility of
prejudice materialized in his case. Undercutting Britt’s
conclusory assertion of prejudice is the fact that the jury
acquitted him of the drug and firearm offenses charged in Counts
Six and Seven. At bottom, Britt’s claim of prejudice amounts to
speculation that a separate trial for the felon-in-possession
counts might have given him a better chance at additional
acquittals. This contention is not a sufficient ground for
severance. United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir.
1984). We therefore conclude that the district court did not abuse
its discretion in denying the motion to sever.
III.
Britt next argues that his convictions for the drug and
firearm offenses charged in Counts One, Two, Three, and Eight must
be reversed because they are not supported by sufficient evidence.*
Our standard of review requires that the jury’s verdict be upheld
*
Britt does not challenge the sufficiency of the evidence for
his conviction on Count Four, the charge for maintaining a place
for the manufacture, distribution, and use of controlled
substances.
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if there is substantial evidence in the record to support it.
United States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999). In
making this determination, “we view the evidence in the light most
favorable to the government and inquire whether there is 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. (internal quotation omitted).
We conclude that there is substantial evidence in the
record supporting the jury’s determination that Britt possessed the
weapons and drugs in question. When police arrived at the
McConnell Road house on February 13, 2003, Britt exercised dominion
and control over the premises. Moreover, while the search of the
house was under way, a police officer observed Britt briefly duck
into the same closet from which police retrieved the 4.8 grams of
crack and the .38 caliber gun. Finally, when he was arrested,
Britt asserted that the only other person in the house, Juanita
Stacee, “had nothing to do with it.” J.A. 109. Coupled with proof
of his prior felony conviction, this evidence is sufficient to
support the jury’s finding of guilt on Counts One through Three
(felon-in-possession of a firearm, possession with intent to
distribute crack, and possession of a firearm in relation to a drug
trafficking crime). As to the 9mm firearm and ammunition recovered
on April 30, 2003, and charged in Count Eight, a reasonable juror
could have found possession based on the testimonial and physical
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evidence concerning Britt’s on-going relationship to the premises
as well as a receipt bearing Britt’s fingerprints which showed that
a girlfriend of his had purchased the firing pin for the weapon.
We therefore affirm Britt’s convictions.
IV.
Britt, who was sentenced in accordance with the then-
mandatory Sentencing Guidelines, argues that the sentence he
received violates his Sixth Amendment rights. We review for plain
error because Britt raised no objection in the sentencing
proceedings. United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005).
At the sentencing hearing the district court asked
Britt’s lawyer if he had “full opportunity to . . . determine
whether any objections should be filed [to the presentence report]
on [Britt’s] behalf.” J.A. 289. Britt’s lawyer responded, “I did.
Originally there were objections, Your Honor; but as Ms. Boggs
noted, all of those have been addressed and resolved in the
presentence report.” Id. The district court then adopted the
factual findings made in the presentence report (PSR). As a
result, the court increased Britt’s offense level pursuant to the
Guidelines on the grounds that: (1) the offenses involved five
firearms, see § 2K2.1(b)(1)(A); (2) the firearm possessed on
February 13, 2003, was stolen, see § 2K2.1(b)(4); and (3) the
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ammunition and firearm possessed on April 30, 2003, were used or
possessed in connection with another felony, see § 2K2.1(b)(5).
Without these enhancements Britt would have had a total
offense level of 20 with a sentencing range of 41 to 51 months for
Counts One, Two, Four, and Eight and a mandatory five-year sentence
on Count Three to run consecutively. With the enhancements Britt’s
offense level totaled 28 and yielded a sentencing range of 97 to
121 months, followed by the mandatory, consecutive five-year
sentence. The district court ultimately imposed concurrent
sentences of 103 months on Counts One, Two, Four, and Eight and a
consecutive sentence of five years on Count Three. Given the
Supreme Court’s holding in United States v. Booker, 543 U.S. 220
(2005), Britt’s sentence can be upheld only if the facts supporting
these enhancements were either found by the jury or admitted by
him. 543 U.S. at 244.
It is undisputed that the jury did not find the facts
necessary to support each enhancement. In fact, Britt was
acquitted of possessing two of the firearms on which the first
enhancement is based. As to admission, our recent case law has
established that a bare failure to object to the facts contained in
the PSR cannot be construed as an admission for Sixth Amendment
purposes. See United States v. Milam, 443 F.3d 382, 388 (4th Cir.
2006). The question in this case is whether the statement of
Britt’s lawyer that all objections had been “resolved” can
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nevertheless be construed as an admission. We have recognized that
in assessing whether a defendant has made an admission for Booker
purposes, “verbalizations necessarily fall along a spectrum.”
United States v. Revels, 455 F.3d 448, 450 (4th Cir. 2006). At one
end of the spectrum, and constitutionally insufficient to deem a
fact admitted, is silence. Id. At the other end, and clearly
constituting an admission, are statements such as “I admit.” Id.
In Revels we held that the defendant’s statement that he had no
objections to the contents of the PSR was not an admission for
Sixth Amendment purposes. Id. at 451. While the defense counsel’s
statement here that no objections to the PSR would be raised
because they had previously been “resolved” falls closer to the
middle of the silence-to-admission spectrum, we conclude that it is
still on the silence side of the spectrum. For Sixth Amendment
purposes, there is no material difference between a defendant’s
statement that he has no objections to the PSR, as in Revels, and
the statement here that unspecified objections to the PSR have been
resolved. Both situations would require a court to draw the
inference of admission in order to deem the PSR’s enhancement facts
to be admitted by the defendant. Because the drawing of such an
inference by the court relieves the government of its
constitutionally assigned burden of proving beyond a reasonable
doubt all facts that mandate an increase in the maximum sentence,
see Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), we conclude
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that Britt’s Sixth Amendment rights were violated.
As a result of the Sixth Amendment error, Britt’s
sentence of 103 months for Counts One, Two, Four, and Eight more
than doubled the high end of the otherwise applicable Guidelines
range. Accordingly, we will notice the plain error and vacate
Britt’s sentence. We remand for the district court to resentence
Britt, treating the Guidelines as advisory. Hughes, 401 F.3d at
546-47. This disposition renders as moot the final challenge that
Britt has raised to his sentence.
* * *
Britt’s convictions are affirmed, and his sentence is
vacated. His case is remanded for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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