                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4515



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DONALD MILTON BOYSAW,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-03-128)


Submitted:   August 2, 2006             Decided:    September 6, 2006


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per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


Barry L. Proctor, Abingdon, Virginia, for Appellant. John L.
Brownlee, United States Attorney, R. Andrew Bassford, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Donald Milton Boysaw appeals his convictions for felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

(2000), and felon in possession of ammunition in violation of 18

U.S.C. § 922(g)(1) (2000).         We affirm Boysaw’s conviction, but we

vacate his sentence and remand for resentencing in light of United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

              Boysaw first contends that the district court erred in

denying his motion for a judgment of acquittal.                  We review the

denial of a motion for judgment of acquittal de novo.                        United

States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).                 A verdict

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). Substantial evidence is defined 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,    862-63    (4th   Cir.   1996)).        In   resolving   issues   of

substantial evidence, we do not weigh evidence or reassess the

factfinder’s assessment of witness credibility.                United States v.

Sun, 278 F.3d 302, 313 (4th Cir. 2002).

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

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


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

defendant    knowingly     possessed     the   firearm   or   ammunition;      and

(3)   the   possession    affected     commerce    because    the    firearm   or

ammunition had traveled in interstate or foreign commerce.               United

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

stipulated to a prior felony conviction and to the interstate

commerce element, leaving only the knowing possession element in

dispute.      Possession    may   be    actual    or   constructive.     United

States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992).                A person has

constructive possession of an item if he knows of its presence and

exercises or has the power to exercise dominion and control over

it.    United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005).

Possession may be established by circumstantial evidence.                United

States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993).

             Federal agents found a firearm on a tray next to the bed

in    the   front   upstairs   bedroom     of    Boysaw’s     house.     Boysaw

demonstrated knowledge of the firearm when he told agents that the

gun belonged to his son Donald Eugene Boysaw (“Little Donald”).

Before Boysaw was taken from the house, he requested a pair of

shoes and cigarettes, which agents found next to the tray where the

gun was found.      Boysaw contended that he did not spend much time in

that bedroom or upstairs, but Boysaw had many possessions in the

upstairs bedrooms.       The federal agents also found ammunition in

various places in the house, including prescriptions and bills in


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Boysaw’s name in a drawer in a bedroom, and in drawers in the

kitchen, and plainly visible in a jar in the basement.        Taking the

view most favorable to the Government, the evidence demonstrates

that Boysaw had the knowledge and the power to exercise dominion

and control over the firearm and ammunition and possessed the

items.     There was sufficient evidence for the jury to conclude

defendant’s guilt beyond a reasonable doubt.

            Boysaw   next   contends   that   his   trial   counsel   was

ineffective for agreeing to stipulations, not calling witnesses,

calling Little Donald to testify while incompetent, and for not

having a trial strategy.       Claims of ineffective assistance of

counsel are not cognizable on direct appeal unless the record

conclusively establishes ineffective assistance.       United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).        Our review of the

record reveals that Boysaw has failed to meet the high burden

necessary to raise ineffective assistance of counsel on direct

appeal.1




     1
      Boysaw contends the district court abused its discretion when
it denied his motion for a new trial because his trial counsel was
ineffective. Pursuant to Rule 33 of the Federal Rules of Criminal
Procedure, a district court may grant a defendant’s motion for a
new trial “if the interest of justice so requires.” Fed. R. Crim.
P. 33(a). This court reviews the denial of a Rule 33 motion for
abuse of discretion. United States v. Adam, 70 F.3d 776, 779 (4th
Cir. 1995). As the record does not establish that any of counsel’s
actions were unreasonable and resulted in ineffective assistance,
Boysaw failed to establish grounds for a new trial. The district
court did not abuse its discretion in denying the motion.

                                 - 4 -
          Boysaw   also   contends   that     the   prosecutor    improperly

persuaded his counsel into accepting the stipulations and that the

stipulations    were   inaccurate.      To     prevail   on   a    claim    of

prosecutorial    misconduct,   Boysaw        must   establish      that    the

prosecutor’s conduct was improper and prejudicially affected his

substantial rights so as to deprive him of a fair trial.              United

States v. Golding, 168 F.3d 700, 702 (4th Cir. 1999).             A forensics

report verified the accuracy of the stipulations and that the

Government could prove the facts contained in the stipulations.

The prosecutor properly agreed to the stipulations and his conduct

did not affect Boysaw’s substantial rights.

          Boysaw further contends that the district court committed

judicial misconduct by allowing Little Donald to testify because

Boysaw asserts Little Donald was not competent to testify.                 All

witnesses are presumed competent to testify.             United States v.

Odom, 736 F.2d 104, 112 (4th Cir. 1984); see also Fed. R. Evid.

601. “Whether the witness has such competency is a matter for

determination by the trial judge after such examination as he deems

appropriate and his exercise of discretion in this regard is to be

reversed only for clear error.”      Id. at 112-13.

          The district court had ample opportunity to observe

Little Donald on the witness stand.      Little Donald answered every

question completely and when asked if he understood his rights he

replied that he did.    The district court stated that Little Donald


                                - 5 -
may have been asleep in the witness room prior to testifying, but

when he took the stand as a witness he seemed to know what he was

doing in the courtroom.     The district court did not clearly err by

allowing Little Donald to testify.

           Boysaw next contends that during sentencing the district

court erred when it designated him an armed career criminal.              A

defendant convicted of violating § 922(g)(1) qualifies as an armed

career criminal under 18 U.S.C. § 924(e) if he has three prior

convictions for a serious drug offense.          The term “serious drug

offense”   includes   “an    offense     under   State    law,    involving

manufacturing,   distributing,     or    possessing      with    intent   to

manufacture or distribute, a controlled substance . . . for which

a maximum term of imprisonment of ten years or more is prescribed

by law.”   18 U.S.C. § 924(e).    In 1983, Boysaw had three separate

Virginia convictions for distribution of cocaine under Va. Code

Ann. § 18.2-248.      Each of those convictions carried a maximum

penalty of forty years’ imprisonment, satisfying the statutory

requirement under 18 U.S.C. § 924(e).            Boysaw claims the drug

offenses should not have been considered due to their age; however,

we have held that there is no temporal restriction on prior

felonies for the purposes of the Armed Career Criminal Act. United

States v. Presley, 52 F.3d 64, 69-70 (4th Cir. 1995) (upholding the

district court’s consideration of a conviction that occurred over




                                 - 6 -
twenty years previously).       The district court properly determined

that Boysaw qualified as an armed career criminal.

           Boysaw further contends that the district court enhanced

his sentence with judicially found facts in violation of Booker.

Boysaw did not object to the use of judicially found facts during

his sentencing.      When a Booker sentencing claim is raised for the

first time on appeal, this court reviews for plain error.         United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).         To meet the

plain error standard: (1) there must be an error; (2) the error

must be plain; and (3) the error must affect substantial rights.

United States v. Olano, 507 U.S. 725, 732-34 (1993).         If the three

elements of the plain error standard are met, the court may

exercise its discretion to notice error only if the error seriously

affects “the fairness, integrity, or public reputation of judicial

proceedings.”     Id. at 736 (citation omitted).

           In Booker, the Supreme Court concluded the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the judge

by a preponderance of the evidence violated the Sixth Amendment.

Booker,   125   S.   Ct.   at   746,   750.   The   Court   remedied   the

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (appellate


                                   - 7 -
standards of review for guideline issues), thereby making the

guidelines advisory.     Booker, 125 S. Ct. at 756-57.

          Boysaw claims that Booker was violated in two respects.

He first contends the district court erred when it enhanced his

sentence with his prior convictions that were not charged in his

indictment    nor   admitted    by     him    in   his   guilty     plea.   In

Almendarez-Torres v. United States, 523 U.S. 224, 245 (1998), the

Supreme Court held that the government need not allege in its

indictment and need not prove beyond reasonable doubt that a

defendant had prior convictions for a district court to use those

convictions for purposes of enhancing a sentence.                 See United

States   v.   Cheek,    415    F.3d    349,    351-53    (4th     Cir.   2005)

(Almendarez-Torres was not overruled by Apprendi or Booker).                We

have ruled that the nature and occasion of prior offenses are facts

inherent in the convictions and that the government does not have

to allege prior convictions in the indictment or submit proof of

them to a jury.     United States v. Thompson, 421 F.3d 278, 285-87

(4th Cir. 2005).       The district court did not err when it used

Boysaw’s prior convictions in calculating his sentence.

          Boysaw also contends that the district court committed

Booker error when it sentenced him under the mandatory sentencing

guidelines.   In United States v. White, 405 F.3d 208, 215 (4th Cir.

2005), this court determined that imposing a sentence under the

guidelines as mandatory was error that was plain.          White, 405 F.3d


                                     - 8 -
at 217.   In determining whether an error affected the defendant’s

substantial rights, we reasoned that “the error of sentencing a

defendant under a mandatory guidelines regime” was not an error for

which prejudice would be presumed.       Id. at 221.    Rather, the

defendant bears the burden of showing that this error “affected the

outcome of the district court proceedings.”     Id. at 223 (quoting

Olano, 507 U.S. at 734).   In White, we relied on the absence of any

statement by the sentencing court “that it wished to sentence White

below the guideline range but that the guidelines prevented it from

doing so,” to find there was “no nonspeculative basis” for finding

prejudice, and affirmed White’s sentence.    Id. at 223-24.   Boysaw

had a statutory minimum sentence of 180 months’ imprisonment and a

sentencing guidelines range of 188-235 months’ imprisonment.   When

the district judge imposed a 188-month prison sentence, the court

stated that “I would like to go below the Guidelines, but I don’t

know of any legal justification the court has for going below the

Guidelines.”   Because the district court clearly indicated that it

would have gone below the guidelines range if it was operating

under an advisory guidelines scheme, we conclude that the court

committed statutory error when it sentenced Boysaw, and Boysaw must

be resentenced.2   See United States v. Rodriguez, 433 F.3d 411,

414-15 (4th Cir. 2006).


     2
      We, of course, imply no criticism of the able district judge,
who sentenced Boysaw in accordance with the law and procedures in
effect at the time of the sentencing.

                                - 9 -
            Although       the    sentencing      guidelines         are    no   longer

mandatory, Booker makes clear that a sentencing court must still

“consult    [the]       Guidelines     and    take    them   into      account     when

sentencing.”       125 S. Ct. at 767.          On remand, the district court

should first determine the appropriate sentencing range under the

guidelines, making all the factual findings appropriate for that

determination.          See Hughes, 401 F.3d at 546.            The court should

consider    this    sentencing        range   along   with     the    other      factors

described   in     18    U.S.C.   §    3553(a)    (2000),    and     then     impose   a

sentence.     Id.        If that sentence falls outside the guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000).               Id.    The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.

            Accordingly, we affirm Boysaw’s conviction, vacate his

sentence, and remand for resentencing in light of Booker.                        We also

deny Boysaw’s motion to relieve his appellate attorney, and grant

Boysaw’s motion to file a pro se supplemental brief, the contents

of which we have fully considered.             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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