United States v. Hames

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4368
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY HAMES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-44-MU)
Submitted: December 19, 2005 Decided: January 31, 2006
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Karen S. Marston, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Hames was convicted by a jury of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). He received a sentence of seventy months of imprisonment.
On appeal, he argues that the district court erred in denying his
motion for judgment of acquittal based on insufficiency of the
evidence and abused its discretion in its jury instruction
regarding constructive possession. Citing United States v. Booker,
125 S. Ct. 738 (2005), Hames also contends that his Sixth Amendment
right to a jury trial was violated because he was sentenced on
facts found by the court and not by the jury, and that the district
court erred in applying enhancements under U.S. Sentencing
Guidelines Manual § 2K2.1(b)(5) (2002) and USSG § 2K2.1(c)(1)(A).
For the reasons that follow, we affirm Hames’ conviction, but
vacate his sentence and remand for resentencing.
Hames first argues that the district court erred in
denying his motion for judgment of acquittal based on insufficiency
of the evidence. This court reviews de novo the district court’s
decision to deny a Fed. R. Crim. P. 29 motion. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Where, as here, the
motion was based on 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); United States v. Wills, 346
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F.3d 476, 495 (4th Cir. 2003), cert. denied, 542 U.S. 939 (2004).
Substantial evidence is defined 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)). 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). Circumstantial evidence may be sufficient to support
a conviction “even though it does not exclude every reasonable
hypothesis consistent with innocence.” United States v. Jackson,
863 F.2d 1168, 1173 (4th Cir. 1989). Witness credibility is within
the sole province of the jury, and the reviewing court will not
reassess the credibility of testimony. United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989). We have reviewed the parties’
briefs and the materials submitted in the joint appendix and
conclude that sufficient evidence supports the jury’s verdict. We
therefore find the district court did not err in denying the
motion.
Next, Hames argues that the district court erred in its
jury instruction regarding constructive possession. Specifically,
he argues that the court’s instruction did not make knowledge an
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essential element to a finding of guilt under a theory of
constructive possession. This court reviews jury instructions for
abuse of discretion. United States v. Ruhe, 191 F.3d 376, 385 (4th
Cir. 1999). The district court’s instructions will be upheld
“provided the instructions, taken as a whole, adequately state the
controlling law.” Teague v. Bakker, 35 F.3d 978, 985 (4th Cir.
1994). Possession may be actual or constructive. United States v.
Rusher, 966 F.2d 868, 878 (4th Cir. 1992). “In order to obtain a
conviction on a theory of constructive possession, the Government
must demonstrate through direct or circumstantial evidence ‘that
the defendant exercised, or had the power to exercise, dominion and
control over the item.’” United States v. Shorter, 328 F.3d 167,
172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d
607, 610 (4th Cir. 1997); see United States v. Blue, 957 F.2d 106,
107 (4th Cir. 1992).
This court has held that “where other circumstantial
evidence . . . is sufficiently probative, proximity to contraband
coupled with inferred knowledge of its presence will support a
finding of guilt on such charges.” United States v. Laughman, 618
F.2d 1067, 1077 (4th Cir. 1980). In this case, the court made it
clear in its instructions to the jury that proximity to the gun
alone could not establish constructive possession. We have
reviewed the court’s instructions in light of the law of this
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circuit concerning constructive possession and find no abuse of
discretion.
Last, with respect to Hames’ challenge to his sentence
under Booker, he did not raise a Sixth Amendment challenge to the
Guidelines below; we therefore review for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, Hames must establish that error occurred,
that it was plain, and that it affected his substantial rights.
Id. at 547-48. If a defendant establishes these requirements, the
court’s “discretion is appropriately exercised only when failure to
do so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 555 (internal quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
Guidelines scheme that provided for sentence enhancements based on
facts found by the court violated the Sixth Amendment. Booker, 125
S. Ct. at 746-48, 755-56. The Court remedied the constitutional
violation by severing and excising the statutory provisions that
mandate sentencing and appellate review under the Guidelines, thus
making the Guidelines advisory. Id. at 756-57. Subsequently, in
Hughes, this court held that a sentence that was imposed under the
pre-Booker mandatory sentencing scheme and was enhanced based on
facts found by the court, not by a jury or admitted by the
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defendant, constitutes plain error that affects the defendant’s
substantial rights and warrants reversal under Booker. Hughes, 401
F.3d at 546-56.
Here, Hames maintains that he did not admit to the facts
underlying the district court’s four-level enhancement under USSG
§ 2K2.1(b)(5) (defendant used or possessed the firearm in
connection with another felony offense, kidnaping), and the
application of the cross-reference to USSG § 2A4.1 under USSG §
2K2.1(c)(1)(A) (instructing to apply base offense level for
kidnaping if higher). Therefore, he argues that the enhancements,
found by a preponderance of the evidence, violated his Sixth
Amendment rights. Because Hames’ 70-month sentence exceeds the
maximum authorized by the facts found by the jury, we conclude that
the district court committed plain error in sentencing Hames and
that the error requires resentencing. Hughes, 401 F.3d at 547.1
Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
1
As we noted in Hughes, “We of course offer no criticism of
the district judge, who followed the law and procedure in effect at
the time” of Hames’ sentencing. Hughes, 401 F.3d at 545 n.4.
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consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
then impose a sentence. Id. If that sentence falls outside the
Guidelines range, the court should explain its reasons for imposing
a non-Guidelines sentence, as required by 18 U.S.C.A. § 3553(c)(2)
(West 2000 & Supp. 2005). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id.Based on the foregoing, we affirm Hames’ conviction and
vacate his sentence and remand for resentencing.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
Because we vacate Hames’ sentence, it is unnecessary for us
to reach his challenge to his Guidelines calculation. Hughes, 401
F.3d at 556 n.15.
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