                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4712



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


LINCOLN MONROE BROCK,

                                            Defendant - Appellant.



Appeal from the United States District      Court for the Middle
District of North Carolina, at Durham.       James A. Beaty, Jr.,
District Judge. (CR-03-429)


Submitted:   January 27, 2006          Decided:     February 28, 2006


Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Lisa S. Costner, Winston-Salem, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Randall S. Galyon,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      Lincoln Monroe Brock was convicted by a jury of three counts

of   distribution     of    cocaine    base,    in    violation    of    21    U.S.C.

§§ 841(a)(1) and (b)(1)(C); one count of distribution of five grams

or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B); one count of possession with intent to distribute five

grams    or   more   of    cocaine    base,    in    violation    of    21    U.S.C..

§§ 841(a)(1) and (b)(1)(B); and one count of possession of a

firearm by a person who has been convicted of a crime punishable by

imprisonment for a term exceeding one year, in violation of 18

U.S.C. § 922(g)(1) and 924(a)(2).             He was sentenced to       a total of

186 months imprisonment, followed by six years of supervised

release.

      On appeal, Brock asserts that the district court erred in

denying his motion for judgment of acquittal as to the firearm

charge   because     the    evidence    presented      by   the   government      was

insufficient to prove that he possessed, used or carried the

firearm at issue.

      We review de novo the denial of a Rule 29 motion for a

judgment of acquittal. See United States v. Ryan-Webster, 353 F.3d

353, 359 (4th Cir. 2003).       We must sustain a jury verdict “if there

is substantial evidence, taking the view most favorable to the

Government, to support it.”           United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc) (internal quotation marks omitted).


                                         2
We   have    defined      “substantial      evidence”        as   “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.      And we “remain cognizant of the fact that the jury,

not the reviewing court, weighs the credibility of the evidence and

resolves any conflicts in the evidence presented.”                    Id. (internal

quotation marks and alteration omitted).

      During execution of a search warrant at a residence believed

to belong to Brock, officers found 6.7 grams of cocaine base in a

closet      in     the   front   bedroom.         A   safe    containing      intimate

photographs of Brock and his wife were also in the closet.                    Letters

addressed        to   Brock   from   his   wife    and   various     other    personal

documents bearing Brock’s name were found in a shoebox in the same

bedroom.         The firearm, a 12-gauge shotgun, was found between the

bed and the closet in the same bedroom, with ammunition nearby.                       In

addition, the government presented evidence that Brock told a

federal agent that he had possessed the shotgun taken from him on

April 1, 2003, for three years.

      We find that the evidence was sufficient to support the

firearm conviction based upon Brock’s possession of the 12-gauge

shotgun found in the bedroom.              See United States v. Jackson, 124

F.3d 607, 610 (4th Cir. 1997) (Constructive possession exists when

“the defendant exercised, or had the power to exercise, dominion

and control over the item.” (internal quotation marks omitted)).


                                            3
Accordingly, the district court did not err in denying Brock’s

motion for judgment of acquittal and we affirm his conviction on

the count.

       Brock next contends that he is entitled to be resentenced in

light of United States v. Booker, 125 S. Ct. 738 (2005), because

his sentence was enhanced based on facts not found by the jury in

violation of his Sixth Amendment rights.

       In Booker, the Supreme Court held that the mandatory manner in

which the federal sentencing guidelines required courts to impose

sentencing enhancements based on facts found by the court by a

preponderance of the evidence violated the Sixth Amendment.                    See

543 U.S. at 750.       The Court remedied the constitutional violation

by   severing    two   statutory    provisions      and   thereby     making   the

guidelines advisory.       See id.      at 756-67.        After Booker, courts

must calculate the appropriate guideline range, consider the range

in conjunction with other relevant factors under the guidelines and

18 U.S.C. § 3553(a), and impose a sentence.                If a district court

imposes a sentence outside the guideline range, the court must

state   its   reasons    for   doing    so    as   required   by    18   U.S.C.   §

3553(c)(2).      See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir.    2005).     The   sentence      must   be    “within   the    statutorily

prescribed range and . . . reasonable.”            Id. at 547.      Because Brock

preserved his Sixth Amendment claim in the trial court, “we must

reverse unless we find this constitutional error harmless beyond a


                                        4
reasonable doubt, with the Government bearing the burden of proving

harmlessness.”    United States v. Mackins, 315 F.3d 399, 405 (4th

Cir. 2003) (citations omitted); see United States v. White, 405

F.3d 208, 223 (4th Cir. 2005).

     Here, the district court established a base offense level of

twenty-eight   based    upon    a   determination   of   the   quantity   of

controlled substances.         See United States Sentencing Guideline

(“USSG”) §2D1.1.       Because a firearm was possessed, the offense

level was increased by two pursuant to USSG § 2D1.1(b)(1), for a

total offense level of thirty.        Brock was further found to have a

criminal history category of VI, based upon fourteen criminal

history points.    Two of the fourteen criminal history points were

added pursuant to USSG § 4A1.1(e), based upon a finding that Brock

had committed the instant offense within two years of his release

from imprisonment.      With a total offense level of thirty, and a

criminal history category of VI, Brock’s recommended guideline

range was 168 to 210 months.              The district court treated the

guidelines as mandatory and imposed a total term of 186 months

imprisonment and eight years supervised release.               However, the

district court noted that, without the enhancement for possession

of the weapon and the two additional criminal history points,

Brock’s total offense level would be 28 and his criminal history

would be V, resulting in a guideline range of 130 to 162 months

imprisonment, followed by a term of 6 years of supervised release.


                                      5
See United States v. Hammoud, 381 F.3d 316, 353 (4th Cir. 2004) (en

banc), judgment vacated, 125 S. Ct. 1051 (2005). Thus, the maximum

sentence under the guidelines without the judge-found facts was

below even the minimum sentence that could have been imposed under

the mandatory scheme.      The government concedes that Booker error

occurred   based    upon   the   criminal   history   finding   and   that

resentencing is appropriate.         We agree, and therefore vacate

Brock’s sentence and remand for resentencing.

     Accordingly,     we   affirm   Brock’s   conviction,   vacate     his

sentence, and remand for resentencing in accordance with Booker.

We deny Booker’s motion to relieve counsel, supplemental motion to

relieve counsel, and motion for production of documents.               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




                                     6
