UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4934
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HAROLD ROBERT RATTLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:05-cr-00036)
Submitted: July 13, 2007 Decided: August 15, 2007
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
John C. Hunter, THE JOHN C. HUNTER LAW FIRM, P.L.L.C., Asheville,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case arises out of a domestic violence incident
between Harold Rattler and his girlfriend, Marlena Toineeta.
Rattler was charged with assault with a dangerous weapon, 18 U.S.C.
§§ 113(a), 1153 (2000) (count one); using and carrying a firearm
during a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2000)
(count two); possession of a firearm by an unlawful user of a
controlled substance, 18 U.S.C. § 922(g)(3) (2000) (count three);
and possession of an unregistered firearm, 26 U.S.C. § 5861(d)
(2000) (count four).1 The jury found Rattler guilty of counts
three and four, but was unable to reach a verdict with respect to
counts one and two.
In the Presentence Report (PSR), to calculate Rattler’s
base offense level, the probation officer cross-referenced to the
offense level calculations for aggravated assault under the United
States Sentencing Guidelines Manual (“USSG”) § 2A2.2(a) (2005) to
arrive at an offense level of 14. The offense level was adjusted
upward because the assault involved the use of a dangerous weapon,
and because the victim sustained serious injuries. USSG
§§ 2A2.2(b)(2); 2A2.2(b)(3)(B). Based on a resulting offense level
of 23 and a criminal history category of IV, Rattler’s Guidelines
range was 70 to 87 months of imprisonment. Rattler objected to the
1
As discussed more fully herein, the indictment described the
provisions of 26 U.S.C. § 5861(d), but erroneously cited subsection
(b).
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PSR on the ground that the application of the cross-reference
violated his Sixth Amendment rights. The district court denied the
objection, concluding that the cross-reference was applicable based
on its finding that Rattler assaulted the victim, using a deadly
weapon and resulting in serious injury. The court imposed a
sentence of 87 months’ imprisonment.
On appeal, Rattler contends that the evidence was
insufficient to support his convictions and that the court should
have granted his motions for judgment of acquittal. We review de
novo the district court’s decision to deny a Rule 29 motion.
United States v. Uzenski, 434 F.3d 690, 700 (4th Cir. 2006).
Where, as here, the motion was based on a claim of insufficient
evidence, “[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942). We review both direct and circumstantial evidence and
permit 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).
Ratter first claims there was no evidence he used drugs
“close in time” to the possession of weapons or that his drug use
was prolonged or consistent for purposes of the § 922(g)(3)
conviction (count three). He also argues that no evidence
connected the drugs found in his home to him. Contrary to these
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arguments, the evidence presented at trial would allow a reasonable
fact finder to conclude that Rattler’s drug use was neither
infrequent nor in the distant past. See United States v. Purdy,
264 F.3d 809, 812 (9th Cir. 2001). Marijuana was found in four
locations in his home, including a bag in the freezer and remnants
of marijuana cigarettes in three locations. Toineeta’s testimony
at trial and her statements prior to trial support the inference
that Rattler regularly consumed drugs. Viewed in the light most
favorable to the Government, the evidence was sufficient to sustain
Rattler’s conviction on count three.
Rattler next argues that the evidence was insufficient to
support his conviction under 26 U.S.C. § 5861(b) (count four).2
Although the indictment and judgment cite subsection (b), the jury
instructions, the evidence, and the description of the offense
contained in both the indictment and the judgment refer to
subsection (d), which prohibits the possession of a firearm that is
not properly registered. Rattler contends that his conviction
should be reversed based on this error; however he did not raise
this issue below. We conclude that this apparent scrivener’s error
is not grounds for reversal. The indictment informed Rattler that
he was charged with possession of an unregistered firearm,
specifically a weapon made from a shotgun having an overall length
2
Subsection (b) prohibits receipt or possession of a firearm
“transferred to him in violation of the provisions of this
chapter.”
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of less than 26 inches, as modified. In addition, the evidence
presented by the Government related to the elements of the offense
of possession of an unregistered firearm, and the jury instructions
correctly cited the text and the elements of § 5861(d). Absent
evidence that Rattler was prejudiced or misled, reversal is not
warranted. See Fed. R. Crim. P. 7(c)(3) (errors in indictments are
not grounds for dismissal “[u]nless the defendant was misled and
thereby prejudiced”). To correct the error in the judgment,
however, we remand to the district court for the purpose of
entering a corrected judgment pursuant to Fed. R. Crim. P. 36.
This correction, of course, will have no effect on Rattler’s term
of imprisonment, or term of supervised release, nor will it restart
the limitations period for filing a motion under 28 U.S.C. § 2255
(2000).
Finally, Rattler contends that his sentence is unlawful
because, in cross referencing to aggravated assault, the district
court made findings that increased his sentence beyond what it
would be based only on facts found by the jury. However, this
general argument was rejected in United States v. Booker, 543 U.S.
220 (2005). Booker did “not in the end move any decision from
judge to jury, or change the burden of persuasion.” United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,
127 S. Ct. 121 (2006). In sentencing defendants after Booker,
district courts continue to make findings necessary for
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enhancement, applying a preponderance of the evidence standard,
while taking into account that the resulting Guidelines range is
advisory only. Id. The sentencing court is authorized to make
factual findings in order to determine appropriately the
defendant’s advisory range under the guidelines. See United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The
district court did not err in making the factual finding necessary
for the application of the assault cross-reference.
Accordingly, we affirm Rattler’s convictions and sentence
but remand to the district court for correction of the statutory
citation in the judgment. Because Rattler is represented by
counsel, we deny his motion to file a pro se brief and motion for
an extension of the time to do so. 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 AND REMANDED
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