                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4076


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERENCE C. RIDLEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:08-cr-00043-RGD-FBS-1)


Submitted:   October 27, 2009              Decided:   June 3, 2010


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Lawrence H. Woodward, Jr., Charles B. Lustig, SHUTTLEWORTH,
RULOFF, SWAIN, HADDAD & MORECOCK, P.C., Virginia Beach,
Virginia, for Appellant.       Dana J. Boente, United States
Attorney, D. Monique Broadnax, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Terence      C.     Ridley    was       convicted     by        a    jury     of

possession of firearms and ammunition by a felon, in violation

of 18 U.S.C. § 922(g)(1) (2006).                Ridley was sentenced by the

district court to 115 months’ imprisonment.                      He challenges his

conviction and sentence on appeal.

            Appellate      counsel       contends      that     the    evidence         was

insufficient to support Ridley’s conviction under § 922(g)(1).

We will uphold a defendant’s conviction 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).

“Substantial evidence is 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.”

United States v. Reid, 523 F.3d 310, 317 (4th Cir.) (internal

quotation marks and citation omitted), cert. denied, 129 S. Ct.

663 (2008).         “[W]e 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. 2006) (en banc)

(internal quotation marks and citation omitted).

            To prove a violation of 18 U.S.C. § 922(g)(1), the

Government must establish that: (1) the defendant was previously

convicted      of   a   crime   punishable      by    a   term    of    imprisonment

exceeding one year; (2) the defendant knowingly possessed the

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firearms    and   ammunition;       and     (3)    the      possession     was   in   or

affecting commerce.          Id. at 395.           Counsel does not challenge

elements one and three as Ridley stipulated at trial that he had

a prior qualifying felony conviction and that the firearms and

ammunition had traveled in interstate commerce.

            Instead, counsel focuses his argument entirely on the

second element--possession.            Section “922(g)(1) does not require

proof of actual or exclusive possession; constructive or joint

possession is sufficient.”           United States v. Gallimore, 247 F.3d

134,   136-37     (4th    Cir.     2001).         “A    person     has    constructive

possession over contraband when he has ownership, dominion, or

control    over   the     contraband      itself       or   over   the    premises    or

vehicle in which it was concealed.”                United States v. Armstrong,

187 F.3d 392, 396 (4th Cir. 1999).

            Here,      testimony    established         that   Ridley     committed    a

traffic violation and led law enforcement officers on a lengthy

chase prior to stopping.             Ridley was the registered owner and

sole occupant of the vehicle he was driving.                             When officers

searched Ridley, they discovered that he was wearing a ski mask

as a hat and that he was in possession of a suspected narcotic

and a significant amount of cash.                 A bulletproof vest was also

found inside the passenger compartment.                     Moreover, a 9mm semi-

automatic pistol and ammunition and a .357 caliber revolver and

ammunition      were     seized    from     the    vehicle’s       trunk.        Ridley

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informed officers that he had been robbed earlier that evening

and    that   he    was   on    his       way   to    retrieve     the      cash    from    his

assailants.           When      considered            together,     these         facts     are

sufficient to establish that Ridley constructively possessed the

firearms      and    ammunition.             Consequently,        Ridley’s         conviction

under § 922(g)(1) is proper.

              Counsel also contends that the district court erred in

applying      a     four-level            enhancement      under        U.S.       Sentencing

Guidelines Manual (“USSG”) § 2K2.1(b)(6) (2007).                            At sentencing,

the    district      court      is    initially         required       to       calculate   an

appropriate advisory Guidelines range.                         Gall v. United States,

552 U.S. 38, 49 (2007).                    The district court “may accept any

undisputed portion of the presentence report as a finding of

fact,” Fed. R. Crim. P. 32(i)(3)(A), and should evaluate the

sentencing factors based on the preponderance of the evidence,

see United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008).

When    reviewing         the    district            court’s    application          of     the

Sentencing        Guidelines,        we    review     findings     of    fact      for    clear

error and questions of law de novo.                     United States v. Llamas, __

F.3d __, 2010 WL 963195, at *4 (4th Cir. March 17, 2010) (No.

09-4045).

              Section 2K2.1(b)(6)               provides         for        a      four-level

enhancement “[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense . . . .”

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USSG    § 2K2.1(b)(6).            “The   purpose    of    this   enhancement       is   to

ensure that a defendant receives more severe punishment if, in

addition to committing a firearms offense within the scope of

§ 2K2.1, he commits a separate felony offense that is rendered

more dangerous by the presence of a firearm . . . .”                           United

States v. Blount, 337 F.3d 404, 406 (4th Cir. 2003) (citing

former USSG § 2K2.1(b)(5) (2001)).                  “‘Another felony offense’,

for purposes of subsection (b)(6), means any federal, state, or

local    offense,    .    .   .    punishable      by    imprisonment    for   a    term

exceeding one year, regardless of whether a criminal charge was

brought, or a conviction obtained.”                     USSG § 2K2.1 cmt. n.14(C).

Moreover, a firearm is used or possessed “in connection with”

another felony offense if it “facilitated, or had the potential

of facilitating,” the offense.              Id. cmt. n.14(A).

            The district court determined that the enhancement was

warranted    based       on   the    officer’s      testimony     that    Ridley        had

evinced an intent to “get” the individuals who had robbed him

earlier in the evening.                  When considered with Ridley’s prior

convictions for assault and murder, the court concluded that

Ridley    “doesn’t       stand      by    while    somebody      does    him   wrong.”

However, because the burden is on the Government to establish by

a preponderance of the evidence that a sentencing enhancement

should be applied, see United States v. Kiulin, 360 F.3d 456,

460 (4th Cir. 2004), it is a close question whether sufficient

                                            5
proof was offered to show that Ridley was on his way to assault

or murder his robbers.

            Although    the     Government       contends        that   the     record

supports the district court’s findings of fact, it alternatively

argues that the enhancement is supported by additional facts

presented at sentencing, but not considered by the court.                         For

example, the Government maintains that the offense of possession

with intent to distribute cocaine base may be inferred from the

quantity of drugs involved, the amount of cash seized, and the

presence    of   a   bulletproof   vest       and    two   firearms.          However,

because the district court did not adopt this theory as its

rationale to support the enhancement, it may not be considered

by this court.        United States v. Carter, 564 F.3d 325, 329-30

(4th Cir. 2009) (“[A]n appellate court may not guess at the

district court’s rationale, searching the record for statements

by the Government or defense counsel or for any other clues that

might explain a sentence.”); see also Llamas, 2010 WL 963195, at

*6 (explaining “adjustment cannot be justified simply because

there might be some evidence in the record--not addressed by the

sentencing court--supporting the [adjustment]”).

            The threat that Ridley would “get” his assailants was

vague and officers testified that Ridley was visibly intoxicated

at the scene and remained so intoxicated that an officer chose

not   to   question    Ridley    hours       later   at    the    police      station.

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Therefore,     considering         only     those    facts        relied   on     by    the

district     court,     as    we    must,    we     conclude       that    the    court’s

application     of      USSG       § 2K2.1(b)(6)        was        not     procedurally

reasonable.    Llamas, 2010 WL 963195, at *6.

           Accordingly, while we affirm Ridley’s conviction, we

vacate the sentence and remand to the district court for further

proceedings.          We,    of    course,       indicate    no     view    as    to    the

appropriate sentence to be imposed upon Ridley, leaving that

determination, in the first instance, to the district court.                             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




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