                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 05-4786



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


RICHARD EDWARD PURNELL, a/k/a Smoke,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-04-53)


Submitted:   February 26, 2008            Decided:   March 12, 2008


Before SHEDD and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per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


Robert C. Stone, Jr., Martinsburg, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Paul T. Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            After a jury trial, Appellant Richard Edward Purnell was

convicted of conspiracy to distribute narcotics, in violation of 21

U.S.C.A. §§ 841(a)(1), 846 (West 1999 & Supp. 2007) (Count One),

receiving and possessing an unlawful firearm, in violation of 26

U.S.C. §§ 5841, 5861(c), 5871 (2000) (Count Two), eight counts of

distributing       crack   cocaine,     in     violation    of        21        U.S.C.A.

§§ 841(a)(1), (b)(1)(C) (Counts Three, Nine, Ten, Eleven, Twelve,

Thirteen, Fourteen and Sixteen), and, of relevance to this appeal,

two counts of using and carrying a firearm during and in relation

to   a    drug    trafficking   crime,        in   violation     of        18    U.S.C.

§§   924(c)(1)(A),     (c)(1)(B)(I),     (ii)      (2000)   (Counts         Four    and

Fifteen).        Purnell makes several challenges to Counts Four and

Fifteen.    Because there was insufficient evidence supporting the

two convictions, we vacate the convictions and sentences.                          As a

result, we will not address the other arguments Purnell raised on

appeal.

            With respect to Counts Four and Fifteen, the jury found

Purnell guilty of using and carrying a firearm during and in

relation to a drug trafficking offense.             Purnell was found to have

used and carried the firearms at issue because he traded crack

cocaine for the firearms.       At the close of the Government’s case,

Purnell moved for a judgment of acquittal on both counts, arguing

that bartering drugs for firearms does not constitute using or


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carrying a firearm under § 924(c).            The court denied Purnell’s

motion.

           We review the district court’s decision to deny a Rule 29

motion de novo.    United States v. Smith, 451 F.3d 209, 216 (4th

Cir.), cert. denied, 127 S. Ct. 197 (2006).          Where, as here, the

motion was based on a claim of 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);

Smith, 451 F.3d at 216.     This court “can reverse a conviction on

insufficiency   grounds   only   when   the    prosecution’s   failure   is

clear.”    United States v. Moye, 454 F.3d 390, 394 (4th Cir.)

(internal quotation marks and citation omitted), cert. denied, 127

S. Ct. 452 (2006).

           While this appeal was pending, the Supreme Court issued

Watson v. United States, 128 S. Ct. 579 (2007).           In Watson, the

Supreme Court reversed the defendant’s conviction for use of a

firearm in furtherance of a drug trafficking offense, which was

predicated on the defendant’s receipt of a firearm in exchange for

drugs.    Watson, 128 S. Ct. at 582, 586.        Building on the Court’s

jurisprudence in Smith v. United States, 508 U.S. 223 (1993), and

Bailey v. United States, 516 U.S. 137 (1995), the Court ruled that

“a person does not ‘use’ a firearm under § 924(c)(1)(A) when he

receives it in trade for drugs.”        Watson, 128 S. Ct. at 586.


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             Because of the Supreme Court’s holding in Watson, we must

find   the    evidence     supporting      Counts    Four    and   Fifteen     was

insufficient.     Accordingly, while we affirm the convictions and

sentences for Counts One, Two, Three, Nine, Ten, Eleven, Twelve,

Thirteen, Fourteen and Sixteen, we vacate the convictions and

sentences for Counts Four and Fifteen.              We remand to the district

court to enter an amended judgment consistent with this opinion.

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




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