                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4116



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


AMEER NASEER CULBREATH,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Richard D. Bennett, District Judge. (CR-
03-223-RDB)


Submitted:   April 22, 2005                 Decided:   June 1, 2005


Before LUTTIG, WILLIAMS, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Jensen E. Barber, LAW OFFICE OF JENSEN E. BARBER, P.C., Washington,
D.C., for Appellant. Thomas M. DiBiagio, United States Attorney,
Daphene R. McFerren, Deborah A. Johnston, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           A jury convicted Ameer Naseer Culbreath 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) (Count 1), and

possession of a firearm with an obliterated serial number, in

violation of 18 U.S.C. § 922(k) (2000) (Count 2).              The district

court sentenced him to a total of 170 months of imprisonment.             On

appeal, he challenges the sufficiency of the evidence on Count 11

and asserts that his sentence violates his Sixth Amendment rights.

We affirm Culbreath’s convictions but vacate his sentence and

remand for resentencing.

           Culbreath contends that the district court erred in

denying his motion for judgment of acquittal under Fed. R. Crim. P.

29 on Count 1 because the evidence was insufficient to prove that

he   possessed   the   firearm   and   that   the    firearm   traveled   in

interstate commerce.     We review the district court’s decision to

deny a Rule 29 motion de novo.         United States v. Lentz, 383 F.3d

191, 199 (4th Cir. 2004), cert. denied,             U.S.   , 2005 WL 80797

(U.S. Apr. 18, 2005) (No. 04-8107).       Where, as here, the motion was

based on insufficient evidence, “[t]he verdict of a jury must be

sustained if there is substantial evidence, taking the view most


      1
      Culbreath does not contest his conviction for possessing a
firearm with an obliterated serial number. See United States v.
Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well
settled rule that contentions not raised in the argument section of
the opening brief are abandoned.”).

                                  - 2 -
favorable to the Government, to support it.”            Glasser v. United

States, 315 U.S. 60, 80 (1942).            We have reviewed the trial

testimony in the joint appendix, supplemental joint appendix, and

government   supplemental    appendix    and   are   convinced   that   the

evidence was sufficient to convict Culbreath. See United States v.

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001) (discussing elements

of the offense).

           Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),

Culbreath contends that his Sixth Amendment right to a jury trial

was violated because he was sentenced on facts found by the court

and not by the jury.        Because Culbreath did not object to his

sentence in the district court based on Blakely or United States v.

Booker, 125 S. Ct. 738 (2005), this court’s review is for plain

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

           In Booker, the Supreme Court held that the mandatory

manner in which the Federal 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.

125 S. Ct. 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).




                                 - 3 -
              Here, the district court sentenced Culbreath under the

mandatory Federal Sentencing Guidelines and applied one enhancement

based    on    facts   found   by   a    preponderance   of   the   evidence.

Specifically, the court increased Culbreath’s base offense level by

three levels under U.S. Sentencing Guidelines Manual § 3A1.2(b)

(2002), based upon its finding that Culbreath assaulted a police

officer during the course of the arrest.2          In light of Booker and

Hughes, we find that the district court plainly erred in sentencing

Culbreath.      Just as we noted in Hughes, “[w]e of course offer no

criticism of the district judge, who followed the law and procedure

in effect at the time” of Culbreath’s sentencing.             401 F.3d at 545

n.4; 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”).

              Accordingly, although we affirm Culbreath’s convictions,

we vacate his sentence and remand for proceedings consistent with

Hughes.3      We dispense with oral argument because the facts and


     2
      Culbreath also received a two-level enhancement under USSG
§ 2K2.1(b)(4) because the firearm had an obliterated serial number.
Because the jury convicted Culbreath of possessing a firearm with
an obliterated serial number, this enhancement did not violate the
Sixth Amendment.
     3
      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 (Breyer, J., opinion of the Court). On remand, the
district court should first determine the appropriate sentencing

                                        - 4 -
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




range under the Guidelines, making all factual findings appropriate
for that determination. Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2004), and
then impose a sentence. Hughes, 401 F.3d at 546. If that sentence
falls outside the Guidelines range, the court should explain its
reasons for the departure as required by 18 U.S.C.A. § 3553(c)(2)
(West Supp. 2004). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.

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