                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 05-4645



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


DAVID MARK WELLS,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CR-04-10073)


Submitted:    February 28, 2007              Decided:   March 20, 2007


Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Sol Z. Rosen, Washington, D.C., for Appellant. John L. Brownlee,
United States Attorney, Randy Ramseyer, Assistant United States
Attorney, E. Reece Hale, Third Year Practice Student, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              David Mark Wells appeals his convictions and 137-month

sentence for being a felon and unlawful user of a controlled

substance in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1), g(3)(2000), and manufacturing and possessing with

intent to distribute marijuana, in violation of 21 U.S.C. § 841

(a)(1) (2000).       For the reasons that follow, we affirm.



                                    I.

     In his brief on appeal and in a motion to remand, Wells argues

that this case should be remanded for resentencing because the

district court treated the Guidelines as mandatory in violation of

the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), and this court’s decision in United States v. Hughes,

401 F.3d 540 (4th Cir. 2005).            Wells was sentenced on June 10,

2005, approximately five months after Booker was decided and the

Guidelines were rendered advisory in nature.           While the district

court   did    not   explicitly   discuss   the   advisory   nature   of   the

Guidelines, the court clearly recognized its post-Booker obligation

to consider the 18 U.S.C. § 3553(a) (West 2000 & Supp. 2006)

factors as well as the Guidelines range, before imposing the

sentence.      This permits us to conclude with confidence that the

district court treated the Guidelines as advisory, in faithful

compliance with Booker and Hughes.


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            Wells also argues that, according to the decisions in

Booker and Blakely v. Washington, 542 U.S. 296 (2004), enhancement

issues of obstruction of justice and criminal conduct during

pretrial release should have been decided by a jury.                       However,

contrary to Wells’ argument, in sentencing defendants after Booker,

district     courts      continue     to     make    findings       necessary      for

enhancement, applying a preponderance of the evidence standard and

taking into account that the resulting Guidelines range is advisory

only.     United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005),

cert. denied, 127 S. Ct. 121 (2006).               Wells’ arguments that he was

sentenced in violation of Booker are without merit.



                                       II.

            Wells claims the evidence was insufficient to support his

convictions,    because     (1)     there    was    no   evidence    of   intent    to

distribute a controlled substance, and (2) there was no evidence

that he possessed any of the firearms found in his residence.                        A

defendant challenging the sufficiency of the evidence faces a heavy

burden.     United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997).     In determining whether the evidence in the record is

substantial, this court inquires whether a reasonable finder of

fact    could   accept    the     evidence     as    adequate   to    establish     a

defendant’s guilt beyond a reasonable doubt.                    United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).                  In evaluating


                                       - 3 -
the sufficiency of the evidence, this court does not “weigh the

evidence or review the credibility of the witnesses” and we defer

to the factfinder when the evidence supports different reasonable

interpretations.   United States v. Wilson, 118 F.3d 228, 234 (4th

Cir. 1997).

           Wells first contends that, although he admitted that he

used marijuana, there was not substantial evidence to support the

jury’s conclusion that he had the intent to distribute.    However,

officers recovered a large quantity of marijuana, some of which was

packaged separately. In addition, officers recovered scales hidden

in a floor vent. We find that this evidence sufficiently supported

the inference of intent to distribute.1

           With respect to his firearm conviction, Wells argues that

there was no evidence to support the conclusion that he possessed

any of the weapons found in his residence.     However, there is no

dispute that a loaded shotgun and ammunition were found in Wells’

bedroom.   Also, Wells explained to ATF agents that the gun in the

bedroom was loaded to protect his chickens, and this admission

supports the inference that the gun was kept in his bedroom for his

ready access.   Although Wells and his girlfriend testified that

Wells expressed his displeasure when he saw the shotgun hanging in


     1
      Given the ample evidence of distribution, we also reject
Wells’ argument that his counsel should have requested an
instruction on the lesser-included offense of simple possession and
that the district court should have, sua sponte, given such an
instruction.

                               - 4 -
his bedroom when the police officers were searching his residence,

this testimony was refuted by the officers who said that Wells’

only comment was that he did not know that he was not supposed to

have firearms in his home.2

             We conclude that the evidence presented at trial was

sufficient   for   a    reasonable   jury   to   conclude   that   Wells

manufactured marijuana with intent to distribute and that he

possessed a firearm.



                                 III.

     Wells claims the district court erred when it denied his

motion to suppress.      However, even assuming that Wells was in

custody when he approached the officers and admitted ownership of

the 28 marijuana plants growing near his home, his statements were

spontaneous and not in response to any question or action on the

part of the officers.    See Rhode Island v. Innis, 446 U.S. 291, 300

(1980)(volunteered statements are not a product of interrogation

and therefore are not barred by the Fifth Amendment). The district

court properly denied the motion to suppress.




     2
      We also reject Wells’ contention that the district court
improperly responded to a jury inquiry regarding the legal age for
the possession of firearms. As the court properly informed the
jury, the issue of whether Wells’ girlfriend’s son was legally
permitted to possess firearms was “not a relevant legal issue in
this case.”

                                 - 5 -
                                        IV.

       Finally,    Wells   argues      that     the   district   court    erred    in

admitting the evidence uncovered in the search of his residence

under the Supreme Court’s recent decision in Georgia v. Randolph,

126 S. Ct. 1515, 1526 (2006), which held that permission by a

co-occupant of an apartment does not justify a warrantless search

where the other occupant, who later seeks to suppress the evidence,

is present and expressly refuses to consent to the search.                  In this

case, although Wells’ girlfriend initially told officers she could

not consent to a search of the residence without conferring with

Wells, once Wells arrived, he consented to the search.                   Because it

is undisputed that Wells consented to the search of his residence,

there is no cognizable argument under Randolph that the search was

unreasonable or invalid as to Wells.              See United States v. Parker,

469    F.3d   1074,    1077-78   (7th    Cir.     2006)   (holding   defendant’s

“express refusal to consent” required to bring case under purview

of Randolph).



                                        V.

              Accordingly, we affirm Wells’ convictions and sentence

and deny his motion to remand for resentencing.                  We dispense with

oral    argument      because    the    facts    and    legal    contentions      are




                                        - 6 -
adequately presented in the material before the court and argument

would not aid the decisional process.



                                                         AFFIRMED




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