                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4119



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JERRY LEE CODY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-02-33-V)


Submitted:   August 31, 2005            Decided:   September 26, 2005


Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant.    Gretchen C. F. Shappert,
United States Attorney, Amy E. Ray, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jerry Lee Cody appeals from his conviction and 210-month

sentence    imposed       for    conspiracy       to   possess       with     intent     to

distribute methamphetamine, in violation of 21 U.S.C. § 846 (2000).

Cody raises three issues on appeal: (1) whether the district court

erred in instructing the jury that to determine possession of

methamphetamine, it could consider evidence of close physical

proximity   to     methamphetamine;         (2)   whether      the    district        court

plainly    erred    in    failing    to     instruct     the     jury       on   multiple

conspiracies; and (3) whether his sentence is erroneous in light of

United States v. Booker, 125 S. Ct. 738 (2005).                      We find no error

in the conviction and affirm it, however we vacate and remand the

sentence for further proceedings.

            This    court       reviews    jury    instructions         for      abuse   of

discretion.      United States v. Ruhe, 191 F.3d 376, 385 (4th Cir.

1999).    The district court’s instructions will be upheld “provided

the   instructions,        taken    as     a   whole,    adequately           state      the

controlling law.”         Teague v. Bakker, 35 F.3d 978, 985 (4th Cir.

1994).     The challenged jury instruction involved possession of

methamphetamine.         The Government must prove beyond a reasonable

doubt that the defendant (1) knowingly (2) possessed the controlled

substance (3) with the intent to distribute it.                      United States v.

Burgos, 94 F.3d 849, 873 (4th Cir. 1996).               Possession may be actual

or constructive.         United States v. Rusher, 966 F.2d 868, 878 (4th


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Cir. 1992). “A person has constructive possession of a narcotic if

he knows of its presence and has the power to exercise dominion and

control over it.”       United States v. Schocket, 753 F.2d 336, 340

(4th Cir. 1985).      Possession need not be exclusive but may be joint

and “may be established by direct or circumstantial evidence.” Id.

           This court has held that “where other circumstantial

evidence . . . is sufficiently probative, proximity to contraband

coupled with inferred knowledge of its presence will support a

finding of guilt on such charges.”         United States v. Laughman, 618

F.2d 1067, 1077 (4th Cir. 1980).             Further, having ownership,

dominion, or control over the premises or vehicle where contraband

is   concealed   is    constructive   possession.      United   States   v.

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

           The relevant instruction by the district court was:

      If   you   find   beyond   a   reasonable    doubt   that
      methamphetamine was found in close proximity to the
      defendant that would be a circumstance from which,
      together with other circumstances, you may infer that the
      defendant was aware of the presence of it and had the
      power and intent to control its disposition or use.

The district followed by instructing that physical proximity was

not enough to establish possession:


      [T]he defendant’s physical proximity, if any, to the
      methamphetamine, does not by itself permit an inference
      that the defendant was aware of its presence or had the
      power or intent to control its disposition or use. Such
      an inference may be drawn only from this and any other
      circumstances which are shown from the evidence beyond a
      reasonable doubt.


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             We      conclude    that     the    challenged     instruction     was

consistent with the law in this Circuit on constructive possession

and   that     the    court’s   further    instruction     made   it   clear   that

proximity to the contraband alone could not establish constructive

possession.          We therefore hold that the district court did not

abuse    its      discretion     in     overruling   the      objection   to   the

instruction.

             Next, Cody contends that the district court erred by not

instructing the jury on multiple conspiracies.                  Because Cody did

not request a jury instruction regarding multiple conspiracies,

review of the failure to give a jury instruction is for plain

error.    United States v. Richerson, 833 F.2d 1147, 1155-56 (5th

Cir. 1987).          Under the plain error standard, Cody must show:

(1) there was error; (2) the error was plain; and (3) the error

affected substantial rights. United States v. Olano, 507 U.S. 725,

732 (1993).       If the three elements are met, the court may exercise

its discretion to notice the error only if the error “seriously

affect[s] the fairness, integrity, or public reputation of judicial

proceedings.”         Olano, 507 U.S. at 732 (internal quotation marks

omitted).

             Even if there was plain error, Cody must show that the

error affected his substantial rights.               The burden is on Cody to

demonstrate that the plain error “actually affected the outcome of

the proceedings.”         United States v. Hastings, 134 F.3d 235, 240


                                         - 4 -
(4th Cir. 1998).    Thus, he must show that the jury convicted him of

the conspiracy count because of the plain error.          United States v.

Godwin, 272 F.3d 659, 680 (4th Cir. 2001).            “[I]n order for the

defense to establish that the jury misinstruction altered the

outcome of the trial, it had to show that the proper instruction,

on the same evidence, would have resulted in acquittal, or at the

very least a hung jury.”     United States v. Nicolaou, 180 F.3d 565,

570 (4th Cir. 1999).

           This    court   has   held   that   “[a]   multiple   conspiracy

instruction is not required unless the proof at trial demonstrates

that   appellants   were   involved     only   in   separate   conspiracies

unrelated to the overall conspiracy charged in the indictment.”

United States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000)

(internal quotation marks omitted).            Cody argues that because

several of the Government’s witnesses did not mention or rarely

mentioned Cody’s co-conspirators charged in the indictment, that he

could not have been part of the conspiracy charged.            However, each

co-conspirator need not know each other in order for all of them to

be engaged in a single conspiracy.         See United States v. Crockett,

813 F.2d 1310, 1317 (4th Cir. 1987); see also United States v.

Gray, 47 F.3d 1359, 1368 (4th Cir. 1995).           Rather, the touchstone

analysis is whether there is an “overlap of key actors, methods,

and goals.”   United States v. Strickland, 245 F.3d 368, 385 (4th

Cir. 2001) (internal quotation marks and citation omitted).


                                   - 5 -
            Here,   Cody   admitted    to   knowing   most   of    the   people

frequently mentioned in the conspiracy.               He was connected to

several co-conspirators by the testimony from his buyers and

supplier.      Thus, he cannot prove that he was in a separate

conspiracy unrelated to the overall conspiracy charged in the

indictment, see Squillacote, 221 F.3d at 574, and we conclude that

Cody has not carried his burden to demonstrate plain error in the

district    court’s   failure     to   give    a   multiple       conspiracies

instruction.

            Finally, Cody argues that the district court enhanced his

sentence based upon facts not submitted to the jury or proven

beyond a reasonable doubt.       Because Cody did not raise this issue

at sentencing, his sentence is reviewed for plain error.                 United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Olano,

507 U.S. at 731-32).       The Supreme Court held in Booker, 125 S. Ct.

at 746, 750, that the mandatory manner in which the Sentencing

Guidelines required courts to impose sentencing enhancements based

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

violated the Sixth Amendment.

            Because Cody received a higher sentence than would have

been permissible based only on the jury’s findings, we vacate and

remand his sentence for resentencing under an advisory guidelines




                                   - 6 -
system.*    See Hughes, 401 F.3d at 547-49, 555-56 (finding that

Hughes had satisfied all three prongs of the plain error test set

forth in Olano, 507 U.S. at 732, when he was sentenced to a

sentence substantially longer than the sentence permitted based

purely on the facts found by a jury, and that the court should

exercise its discretion to recognize the error).

           Although the 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.    Sentencing courts should first determine the appropriate

sentencing range under the Guidelines, making all factual findings

appropriate for that determination.     See Hughes, 401 F.3d at 546.

The court should consider the Guideline 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 Guideline range,

the court should explain its reasons for departure as required by

18 U.S.C.A. § 3553(c)(2) (West Supp. 2004).   Id.   The sentence must

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

Id. at 546-47.




     *
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Appellant’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

                                - 7 -
          We therefore affirm Cody’s conviction and vacate his

sentence and remand for further proceedings consistent with Booker

and Hughes.   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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