United States v. Caldwell ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5019
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN DOUGLAS CALDWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-04-80)
Submitted: May 3, 2006 Decided: May 25, 2006
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Timothy Jon LaFon, CICCARELLO & DEL GIDUICE, Charleston, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Brian Douglas Caldwell pled guilty pursuant to a written
plea agreement to one count of possession of a firearm by an
adjudicated mental defective and one count of providing false
information, in violation of 18 U.S.C. §§ 922(g)(4); 924(a)(1)(A),
(a)(2) (2000). He was sentenced to a total term of imprisonment of
seventy-eight months. On appeal, Caldwell contends that the
district court erred in its application of the Sentencing
Guidelines. We affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court is no longer bound by the range prescribed by the
Sentencing Guidelines. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005). However, in determining a sentence
post-Booker, sentencing courts are still required to calculate and
consider the guideline range prescribed thereby as well as the
factors set forth in 18 U.S.C. § 3553(a) (2000). Id. We will
affirm a post-Booker sentence if it is both reasonable and within
the statutorily prescribed range. Id. at 546-47; see also United
States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (stating a
sentence imposed within a properly calculated guideline range is
presumptively reasonable), cert. denied, __ U.S. __, 2006 WL
1057741 (U.S. May 22, 2006) (No. 05-10474). When reviewing the
district court’s application of the Sentencing Guidelines, we
review findings of fact for clear error and questions of law de
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novo. Green, 436 F.3d at 456. A sentence is unreasonable if based
on an error in construing or applying the Sentencing Guidelines.
Id. at 456-57.
Caldwell first argues that the Government failed to
establish by a preponderance of the evidence that he used a firearm
in the commission of another felony offense. Specifically,
Caldwell argues that the testimony did not place him at the scene
of the crime during its commission. He reasons that his admission
that he was a gun enthusiast explained why his shell casings were
found at the crime scene. However, a Government witness testified
that she saw a man in a dark colored truck fire a weapon from
inside his vehicle. The unidentified individual fired the weapon
not only at the witness’s truck, but also in her direction. The
witness immediately brought law enforcement officers back to the
crime scene, resulting in the discovery of shell casings. These
casings were described as “fresh” by the witness because they were
not rusty or dirty.
Further, a trace evidence expert testified that gunshot
residue was found in the interior of Caldwell’s truck.
Specifically, residue was found on the driver’s side door, the
headliner above the driver’s side door, and the steering wheel.
Additionally, a ballistics expert testified that the markings on
the shell casings recovered from the crime scene matched those test
fired from Caldwell’s weapon. Based on these facts, we conclude
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the district court did not clearly err in finding Caldwell used the
firearm in the commission of another felony offense.*
Next, Caldwell contends the district court erred in
determining he possessed more than fifty firearms. He argues that
the mere fact that the firearms were seized from his residence is
insufficient to establish possession. However, Caldwell’s argument
ignores the concept of constructive possession, wherein it is
sufficient to prove that “the defendant exercised, or had the power
to exercise, dominion and control over the item.” United States v.
Jackson, 124 F.3d 607, 610 (4th Cir. 1997). A Special Agent with
the Bureau of Alcohol, Tobacco, Firearms, and Explosives testified
that more than fifty firearms and more than 47,000 rounds of
ammunition were seized from Caldwell’s residence. Further,
witnesses testified that they had not only heard Caldwell speak
about the firearms he owned, but also witnessed him shoot various
firearms. Additionally, Caldwell acknowledges that he was a
firearm enthusiast. Therefore, we conclude the district court did
not clearly err in finding Caldwell possessed more than fifty
firearms, and, consequently, the district court properly applied
the sentencing enhancements.
*
Caldwell also challenges the evidence presented in relation
to another felony offense alleged by the Government. However, we
need not address this evidence as the truck shooting supports the
enhancement.
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Caldwell’s final contention is that it was “fundamentally
unfair” for the district court to calculate his offense level using
the law in effect at the time of the commission of the offense and
then apply the guidelines as advisory rather than mandatory.
Caldwell committed the instant offense in February 2003, more than
one year before the ban on semiautomatic firearms was repealed.
See 18 U.S.C. § 921 (2000) (amendments and historical notes).
Therefore, § 921(a)(30)(B) was properly treated as remaining in
force for sentencing purposes. See 1 U.S.C. § 109 (2000).
Further, the district court appropriately treated the Sentencing
Guidelines as advisory because sentencing occurred post-Booker.
Because the district court properly calculated and considered the
advisory guideline range and weighed the relevant § 3553(a)
factors, we conclude Caldwell’s sentence was reasonable.
Accordingly, we affirm Caldwell’s sentence. 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
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