United States v. Christian

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4986
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BILLY FRANK CHRISTIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen M. Williams, Senior
District Judge. (CR-04-27)
Submitted: January 26, 2006 Decided: February 22, 2006
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Matthew W. Greene, SMITH & GREENE, P.L.L.C., Fairfax, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Billy Frank Christian was found guilty
of violating 18 U.S.C. § 922(a)(6) by making false statements in
connection with his acquisition of a firearm. Christian was
sentenced to fifty-one months of incarceration followed by three
years of supervised release. Christian now appeals his conviction
and sentence. We affirm his conviction, but vacate his sentence
and remand for resentencing.
I.
Christian first contends that the evidence was insufficient to
convict him. "A defendant challenging the sufficiency of the
evidence to support his conviction bears a heavy burden." United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal
quotations omitted). In deciding whether sufficient evidence
supports a conviction, we consider whether, taking the evidence in
the light most favorable to the Government, substantial evidence
supports the verdict. Glasser v. United States, 315 U.S. 60, 80
(1942). “Substantial 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.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir 1996) (en banc).
We review both direct and circumstantial evidence and permit "the
Government the benefit of all reasonable inferences from the facts
2
proven to those sought to be established." United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Witness credibility
is within the sole province of the jury, and we will not reassess
the credibility of testimony. United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989).
Section 922(a)(6) provides in pertinent part that it shall be
unlawful:
for any person in connection with the acquisition or
attempted acquisition of any firearm or ammunition from
a . . . licensed dealer . . . knowingly to make any false
or fictitious oral or written statement or to furnish or
exhibit any false, fictitious, or misrepresented
identification, intended or likely to deceive such . . .
dealer . . . with respect to any fact material to the
lawfulness of the sale.
18 U.S.C. § 922(a)(6). Christian argues that the Government failed
to provide any evidence that deceptive conduct occurred.
Specifically, Christian contends that because the store clerk
possessed no discretionary authority over the course of the
firearms transaction, “there existed no evidence to demonstrate
that the deception of the store clerk had any impact, bearing or
relevance on the elements of the offence charged.” We disagree.
We have stated that “[e]vidence that a defendant made a
knowing misrepresentation of a fact material to the legality of the
sale is sufficient to permit a reasonable jury to conclude that the
defendant possessed the intent to deceive the dealer or,
alternatively, that his statement was likely to deceive such
dealer.” United States v. Rahman, 83 F.3d 89, 93 n.* (4th Cir.
3
1996). After a through review of the record, we find that the
Government presented such evidence. Testimony established that
upon receiving both state and federal firearms forms, Christian
asked the store clerk if “they had to be filled out truthfully,”
and the clerk responded in the affirmative. Christian indicated on
the forms that he had not been convicted of a felony and that he
was not subject to court order for harassing, stalking, or
threatening a child or partner. The Government presented evidence
at trial that prior to completing those forms Christian had pleaded
guilty to a felony count of second degree burglary and that he was
the subject of a domestic violence protective order from the state
of Florida. We conclude that in the light most favorable to the
Government, this evidence is sufficient to meet the deceptive
conduct requirement of § 922(a)(6).
II.
Christian next argues that he is entitled to resentencing
based on the mandatory application of federal sentencing
guidelines. See United States v. Booker, 125 S. Ct. 728, 764-65
(2005). Because the record reflects that Christian did not
preserve this claim below, we review it for plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993); United States v.
White, 405 F.3d 208, 215 (4th Cir. 2005). Although the Government
concedes that the district court committed an error that was plain,
4
it argues that Christian cannot demonstrate actual prejudice as a
result of having been sentenced under a mandatory scheme. See
White, 405 F.3d at 223-24. Christian contends that he can
demonstrate prejudice because it is apparent from a statement made
by the district court that it would have acted differently under an
advisory scheme. Specifically, Christian notes that the district
court stated, “This is a sentence at the low end of the guidelines,
and the least that I can give in accordance with the law.” This
statement could provide a “nonspeculative basis for concluding that
the treatment of the guidelines as mandatory affected the district
court’s selection of the sentence imposed.” Id. at 223 (internal
quotations omitted). Thus, we vacate Christian’s sentence and
remand the case for resentencing consistent with Booker.*
III.
Accordingly, we affirm Christian’s conviction, but vacate and
remand for resentencing. 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 AND REMANDED IN PART
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “we of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Christian’s sentencing.
5