United States v. Shields , 133 F. App'x 60 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4389
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS JUNIOR SHIELDS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-312)
Submitted: April 15, 2005 Decided: June 2, 2005
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Thomas Junior Shields was
convicted of possession of a firearm by a convicted felon, in
violation of 18 U.S.C.A. §§ 922(g)(1) & 924(e)(1) (West 2000 &
Supp. 2004). The district court sentenced Shields under the
federal sentencing guidelines to 120 months in prison. Shields
timely appealed.
I.
Shields contends that the evidence was insufficient to
support his conviction. A defendant challenging the sufficiency of
the evidence “bears a heavy burden.” United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). “The 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). This court “ha[s] defined
‘substantial evidence,’ in the context of a criminal action, as
that evidence which ‘a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.’” United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc)). In evaluating the
sufficiency of the evidence, this court does not review the
credibility of the witnesses and assumes that the jury resolved all
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contradictions in the testimony in favor of the government. United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). The court
reviews both direct and circumstantial evidence and permits “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 (4th Cir. 1982).
The elements of a violation of § 922(g)(1) are that:
“(1) the defendant previously had been convicted of a crime
punishable by a term of imprisonment exceeding one year; (2) the
defendant knowingly possessed . . . the firearm; and (3) the
possession was in or affecting interstate commerce, because the
firearm had travelled [sic] in interstate or foreign commerce.”
United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en
banc). Shields challenges only the second element of his
§ 922(g)(1) conviction. The evidence presented at trial showed
that Shields had obtained a firearm from an acquaintance in payment
of a debt and had threatened a woman with the gun before ultimately
leaving it at his daughter’s house. Several witnesses identified
the shotgun introduced at trial as the weapon Shields had
possessed. No evidence was presented at trial countering this
testimony. We conclude that the evidence presented at trial was
sufficient to permit a reasonable fact finder to conclude that
Shields knowingly possessed the firearm.
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II.
Next, Shields argues that the district court erred in
denying his motion for a new trial based on newly discovered
evidence. We review a district court’s order denying a motion for
a new trial under Fed. R. Crim. P. 33 for abuse of discretion.
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).
In order to receive a new trial under Rule 33 based on
newly discovered evidence, Shields must demonstrate that: (1) the
evidence is newly discovered; (2) he has been diligent in
uncovering it; (3) it is not cumulative or impeaching; (4) it is
material to the issues involved; and (4) it would probably produce
an acquittal. United States v. Fulcher, 250 F.3d 244, 249 (4th
Cir. 2001) (citing United States v. Custis, 988 F.2d 1355, 1359
(4th Cir. 1993)). Defendants are generally expected to satisfy all
five elements in order to receive a new trial. Fulcher, 250 F.3d
at 249.
Shields argues that after trial but before sentencing he
learned from a forfeiture specialist from the Bureau of Alcohol,
Tobacco, Firearms, and Explosives that the shotgun he was accused
of possessing had been destroyed before trial. The forfeiture
specialist denied informing Shields that the shotgun had been
destroyed, and several witnesses at trial testified that the
shotgun presented at trial was the one that Shields had possessed.
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Therefore, we find that Shields could not establish that the newly
discovered evidence would have resulted in an acquittal.
III.
Shields’ sentence included an enhancement under U.S.
Sentencing Guidelines Manual § 2K2.1(b)(4) (2003), based on the
court’s findings at sentencing that the firearm had an obliterated
serial number, and an enhancement under USSG § 2K2.1(b)(5), based
on the court’s findings at sentencing that Shields used or
possessed the firearm in connection with another felony. Citing
Blakely v. Washington, 124 S. Ct. 2531 (2004), Shields argues for
the first time on appeal that his sentence is unconstitutional
because it was based on facts that were neither charged in the
indictment nor proven beyond a reasonable doubt.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that the federal sentencing guidelines scheme,
under which courts were required to impose sentencing enhancements
based on facts found by the court by a preponderance of the
evidence, violated the Sixth Amendment because of its mandatory
nature. Id. at 746, 750 (Stevens, J., opinion of the Court). The
Court remedied the constitutional violation by making the
guidelines advisory through the removal of two statutory provisions
that had rendered them mandatory. Id. at 746 (Stevens, J., opinion
of the Court); id. at 756-57 (Breyer, J., opinion of the Court).
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Although Shields did not raise the Sixth Amendment challenge at
sentencing, this court has held that a mandatory enhancement based
on judicial factfinding supported by a preponderance of the
evidence constitutes plain error warranting correction. United
States v. Hughes, 401 F.3d 540, 546-48 (4th Cir. 2005).
In light of Booker and Hughes, we find that the district
court plainly erred in sentencing Shields and that the error
warrants correction. Therefore, although we affirm Shields’
conviction, we vacate his sentence and remand for proceedings
consistent with Hughes.* Shields’ pro se motion to amend his
appeal is denied. 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
*
Because Shields’ mandatory guidelines sentence is vacated, at
this time we decline to address Shields’ challenge to the
calculation of his criminal history under the guidelines.
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