United States v. Antwain Devon Council ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4073
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTWAIN DEVON COUNCIL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (5:07-cr-00199-FL-1)
Submitted: January 12, 2012 Decided: January 24, 2012
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant. George E.B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antwain Devon Council was convicted after a jury trial
of one count of possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924
(2006), and was sentenced as an armed career criminal to 235
months’ imprisonment. On appeal, Council challenges his
conviction and sentence, arguing that the evidence is
insufficient to support his conviction and that the district
court erred in denying his motion for a downward departure and
in sentencing him as an armed career criminal. We conclude that
the evidence is sufficient to support Council’s conviction and
that, although the district court’s denial of his motion for a
downward departure is not reviewable, resentencing in light of
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc), is warranted. Accordingly, we affirm Council’s
conviction, vacate his sentence, and remand for resentencing.
We review de novo the district court’s denial of a
Rule 29 motion for judgment of acquittal. United States v.
Green, 599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct.
271 (2010). When a defendant challenges the sufficiency of the
evidence supporting the jury’s guilty verdict, we view the
evidence and all reasonable inferences in favor of the
Government and will uphold the jury’s verdict if it is supported
by substantial evidence. United States v. Cameron, 573 F.3d
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179, 183 (4th Cir. 2009). “[S]ubstantial evidence 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 marks omitted).
In reviewing for substantial evidence, we will not weigh
evidence or review witness credibility. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the
role of the jury to judge the credibility of witnesses, resolve
conflicts in testimony, and weigh the evidence. United
States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).
To convict Council of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1),
the Government was required to prove that he: (1) was previously
convicted of a crime punishable by a term of imprisonment
exceeding one year; (2) knowingly possessed, transported, or
received the firearm and ammunition; and (3) that the possession
was in or affecting commerce, because the firearm and ammunition
had traveled in interstate or foreign commerce. United
States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).
The Government need not produce evidence of actual possession;
constructive possession is sufficient. United States v.
Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001). The Government
may prove constructive possession by demonstrating that the
defendant “exercised, or had the power to exercise, dominion and
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control over the item.” Id. at 137 (internal quotation marks
omitted).
Contrary to Council’s assertion, the evidence viewed
in the light most favorable to the Government establishes well
more than his mere proximity to the firearm. Indeed, if
believed, it establishes direct contact between Council’s legs
and the firearm. From this evidence, we conclude a rational
trier of fact could have concluded that Council possessed the
firearm the officers seized, thereby satisfying the possession
element of § 922(g)(1). See, e.g., United States v. Johnson,
55 F.3d 976, 979 (4th Cir. 1995) (distinguishing United States
v. Blue, 957 F.2d 106 (4th Cir. 1992), and holding evidence of
constructive possession sufficient to support § 922(g)
conviction where defendant had bodily contact with a “dark
object,” was observed placing his arm outside the driver’s
window of a vehicle and dropping the object, and where a search
of the area several minutes later uncovered a firearm).
Next, Council argues that the district court erred in
refusing to grant his request for a downward departure under
U.S. Sentencing Guidelines Manual (“USSG”) §§ 4A1.3, p.s., and
5K2.0, p.s. (2007). As Council recognizes, however, a district
court’s refusal to depart from the applicable Guidelines
sentence does not provide a basis for appeal under 18 U.S.C.
§ 3742 (2006), “unless the court failed to understand its
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authority to do so.” United States v. Brewer, 520 F.3d 367, 371
(4th Cir. 2008). After review of Council’s briefs and the
record on appeal, we find no evidence that the district court
failed to understand its authority to depart.
Finally, Council argues that the district court erred
in sentencing him as an armed career criminal because his prior
North Carolina state conviction for eluding arrest with a motor
vehicle is not a violent felony. The Armed Career Criminal
Act’s (“ACCA”) provision for an enhanced sentence — a statutory
range of fifteen years to life in prison — is applicable to a
defendant who violates 18 U.S.C. § 922(g)(1) and has “three
previous convictions . . . for a violent felony or a serious
drug offense.” 18 U.S.C. § 924(e)(1); USSG § 4B1.4(a) & cmt.
n.1. A “violent felony” is an offense punishable by
imprisonment for a term exceeding one year that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another,” or “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii).
Council asserts that his prior state conviction was
not punishable by imprisonment for a term exceeding one year.
See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth
minimum and maximum sentences applicable under the North
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Carolina Structured Sentencing Act). Council, however, did not
raise this argument in the district court. Accordingly, our
review is for plain error. United States v. Hargrove, 625 F.3d
170, 184 (4th Cir. 2010), cert. denied, 132 S. Ct. 292 (2011).
To establish plain error, Council must demonstrate that
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). Even if Council makes this showing,
however, we exercise our discretion to correct plain error only
if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Lynn, 592
F.3d 572, 577 (4th Cir. 2010) (internal quotation marks
omitted). We conclude after review of the record that Council
has met his burden to establish plain error.
Council’s prior state conviction is a Class H felony
under North Carolina law. Although the record does not contain
a copy of Council’s state judgment, it appears after review of
the presentence report that the district court adopted that
Council’s prior state record level was Level III. N.C. Gen.
Stat. §§ 14-72.2(a), (b), 14-127, 14-160(a), 14-223, 15A-
1340.14(a), (b)(4)-(5), (7), (c)(3), (d), 20-106, 90-90, 90-
95(a)(1), (3), (b)(1), (d)(4) (2009). Under the North Carolina
Structured Sentencing Act, with a prior record in Level III,
Council could only have been imprisoned for a term exceeding one
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year for his conviction for eluding arrest with a motor vehicle
if he received a sentence in the aggravated range. N.C. Gen.
Stat. § 15A-1340.17(c)-(d). The present record does not
indicate that Council received an aggravated sentence.
Therefore, because it appears that the conviction was not a
proper predicate conviction for purposes of the ACCA, the
district court erred by sentencing Council as an armed career
criminal. 1
We also hold that the district court’s error was
“plain.” For purposes of plain error review, “‘[p]lain’ is
synonymous with ‘clear’ or, equivalently, ‘obvious.’” Olano,
507 U.S. at 734. “An error is plain where the law at the time
of trial was settled and clearly contrary to the law at the time
of appeal.” United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005) (internal quotation marks omitted). When
Council objected to his classification as an armed career
criminal in the district court, any objection based on his
sentence exposure for his prior state offense was foreclosed by
this court’s decision in United States v. Harp, 406 F.3d 242,
246 (4th Cir. 2005). Because Simmons has now overruled Harp,
however, the district court’s error was plain. Simmons, 649
1
This determination, of course, implies no criticism of the
experienced district judge, who dutifully applied
then-authoritative Circuit precedent at Council’s sentencing.
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F.3d at 241 (“[W]e now conclude that Harp no longer remains good
law.”). The error also affected Council’s substantial rights.
Had Council not been classified as an armed career criminal, the
statutory maximum for his § 922(g) conviction would have been
ten years, barely more than half the length of the 235-month
sentence actually imposed.
Because Council received a longer sentence than he
could have received were it not for his classification as an
armed career criminal, we find it appropriate to notice the
district court’s sentencing error. Accordingly, we affirm
Council’s conviction, vacate his sentence, and remand for
resentencing under Simmons. 2 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
2
In light of our disposition, we need not address Council’s
arguments that his prior state conviction does not “otherwise
involve[] conduct that presents a serious potential risk of
physical injury to another.”
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