                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4389



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


THOMAS JUNIOR SHIELDS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-312)


Submitted:   April 15, 2005                 Decided:   June 2, 2005


Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Following       a   jury   trial,    Thomas    Junior       Shields   was

convicted of possession of a firearm by a convicted felon, in

violation of 18 U.S.C.A. §§            922(g)(1) & 924(e)(1) (West 2000 &

Supp. 2004).         The district court sentenced Shields under the

federal sentencing guidelines to 120 months in prison.                     Shields

timely appealed.



                                        I.

           Shields contends that the evidence was insufficient to

support his conviction. A defendant challenging the sufficiency of

the evidence “bears a heavy burden.” United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).              “The 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).      This    court   “ha[s]    defined

‘substantial evidence,’ in the context of a criminal action, 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) (en banc)).                   In evaluating the

sufficiency     of   the   evidence,    this    court    does    not    review   the

credibility of the witnesses and assumes that the jury resolved all


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contradictions in the testimony in favor of the government. United

States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).                    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).

             The elements of a violation of § 922(g)(1) are that:

“(1)   the   defendant   previously    had   been    convicted    of    a   crime

punishable by a term of imprisonment exceeding one year; (2) the

defendant knowingly possessed . . . the firearm; and (3) the

possession was in or affecting interstate commerce, because the

firearm had travelled [sic] in interstate or foreign commerce.”

United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en

banc).       Shields   challenges    only    the    second    element    of   his

§ 922(g)(1) conviction.        The evidence presented at trial showed

that Shields had obtained a firearm from an acquaintance in payment

of a debt and had threatened a woman with the gun before ultimately

leaving it at his daughter’s house.          Several witnesses identified

the    shotgun    introduced   at   trial    as    the   weapon   Shields     had

possessed.       No evidence was presented at trial countering this

testimony.       We conclude that the evidence presented at trial was

sufficient to permit a reasonable fact finder to conclude that

Shields knowingly possessed the firearm.




                                    - 3 -
                                   II.

            Next, Shields argues that the district court erred in

denying his motion for a new trial based on newly discovered

evidence.   We review a district court’s order denying a motion for

a new trial under Fed. R. Crim. P. 33 for abuse of discretion.

United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

            In order to receive a new trial under Rule 33 based on

newly discovered evidence, Shields must demonstrate that: (1) the

evidence    is   newly   discovered;   (2)   he   has   been   diligent   in

uncovering it; (3) it is not cumulative or impeaching; (4) it is

material to the issues involved; and (4) it would probably produce

an acquittal.     United States v. Fulcher, 250 F.3d 244, 249 (4th

Cir. 2001) (citing United States v. Custis, 988 F.2d 1355, 1359

(4th Cir. 1993)). Defendants are generally expected to satisfy all

five elements in order to receive a new trial.          Fulcher, 250 F.3d

at 249.

            Shields argues that after trial but before sentencing he

learned from a forfeiture specialist from the Bureau of Alcohol,

Tobacco, Firearms, and Explosives that the shotgun he was accused

of possessing had been destroyed before trial.             The forfeiture

specialist denied informing Shields that the shotgun had been

destroyed, and several witnesses at trial testified that the

shotgun presented at trial was the one that Shields had possessed.




                                  - 4 -
Therefore, we find that Shields could not establish that the newly

discovered evidence would have resulted in an acquittal.



                                      III.

             Shields’ sentence included an enhancement under U.S.

Sentencing Guidelines Manual § 2K2.1(b)(4) (2003), based on the

court’s findings at sentencing that the firearm had an obliterated

serial number, and an enhancement under USSG § 2K2.1(b)(5), based

on   the    court’s   findings   at   sentencing   that   Shields   used   or

possessed the firearm in connection with another felony.             Citing

Blakely v. Washington, 124 S. Ct. 2531 (2004), Shields argues for

the first time on appeal that his sentence is unconstitutional

because it was based on facts that were neither charged in the

indictment nor proven beyond a reasonable doubt.

             In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that the federal sentencing guidelines scheme,

under which courts were required to impose sentencing enhancements

based on facts found by the court by a preponderance of the

evidence, violated the Sixth Amendment because of its mandatory

nature.     Id. at 746, 750 (Stevens, J., opinion of the Court).           The

Court      remedied   the   constitutional    violation    by   making     the

guidelines advisory through the removal of two statutory provisions

that had rendered them mandatory. Id. at 746 (Stevens, J., opinion

of the Court); id. at 756-57 (Breyer, J., opinion of the Court).


                                      - 5 -
Although Shields did not raise the Sixth Amendment challenge at

sentencing, this court has held that a mandatory enhancement based

on   judicial   factfinding   supported    by   a   preponderance    of   the

evidence constitutes plain error warranting correction.               United

States v. Hughes, 401 F.3d 540, 546-48 (4th Cir. 2005).

           In light of Booker and Hughes, we find that the district

court plainly erred in sentencing Shields and that the error

warrants   correction.    Therefore,      although    we   affirm   Shields’

conviction, we vacate his sentence and remand for proceedings

consistent with Hughes.*       Shields’ pro se motion to amend his

appeal is denied. 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




      *
      Because Shields’ mandatory guidelines sentence is vacated, at
this time we decline to address Shields’ challenge to the
calculation of his criminal history under the guidelines.

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