                             ON REHEARING

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4532



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


GEORGE KEITH MARTIN,

                                             Defendant - Appellant.



                             No. 06-4603



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

           versus


GEORGE KEITH MARTIN,

                                              Defendant - Appellee.



Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:05-cr-00021-IMK)


Argued:   October 31, 2007                   Decided:   May 16, 2008
Before TRAXLER and GREGORY, Circuit Judges, and Jerome B. FRIEDMAN,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished per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


ARGUED: James Bryan Zimarowski, Morgantown, West Virginia, for
George Keith Martin.    Zelda Elizabeth Wesley, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg,
West Virginia, for the United States. ON BRIEF: Sharon L. Potter,
United States Attorney, Wheeling, West Virginia, for the United
States. ON BRIEF ON REHEARING: Matthew A. Victor, VICTOR VICTOR &
HELGOE, LLP, Charleston, West Virginia, for George Keith Martin.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      George Keith Martin, the defendant, appeals his convictions by

a jury for conspiracy to possess with intent to distribute and to

distribute in excess of fifty grams of cocaine base, also known as

“crack” cocaine, in violation of 21 U.S.C. § 846 (Count 1), aiding

and abetting the distribution of cocaine base, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count 2),

distribution    of   cocaine   base,       in   violation    of   21   U.S.C.   §§

841(a)(1) and (b)(1)(C) (Count 4), and use of a firearm during and

in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(I) (Count 5).       In his appeal, Martin claims there

was insufficient evidence to support his conviction, the district

court erred in not including his proposed jury instruction on

weaker and less satisfactory evidence in its charge to the jury,

and   the   district   court   erred   in       allowing    the   government    to

improperly bolster their case through the testimony of Sergeant

Purkey and admission of the videotape. We vacate Martin’s § 924(c)

conviction but affirm his other convictions.

      The government cross-appeals Martin’s sentence, claiming the

district court erred in holding that the court was unable, pursuant

to United States v. Milam, 443 F.3d 382 (4th Cir. 2006), and United

States v. Revels, 455 F.3d 448 (4th Cir. 2006), to make any

additional factual findings that had not been determined by the

jury nor admitted by the defendant.             Because we vacate Martin’s §


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924 conviction, we also vacate his sentence and remand to the

district court for resentencing.       We nevertheless address the

sentencing issue cross-appealed by the government in order to

provide guidance to the district court on remand.



                                 I.

     Martin argues the lack of physical or forensic evidence

presented by the government and the questionable character of some

of the government’s witnesses warrant a finding that there was

insufficient evidence to support the jury’s verdict.

     In determining whether the government presented sufficient

evidence at trial, the reviewing court examines the evidence in the

light most favorable to the government to determine whether any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.   See Jackson v. Virginia, 443

U.S. 307, 318-19 (1979); United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc).   The reviewing court must be aware that

“‘[t]he jury, not the reviewing court, weighs the credibility of

the evidence and resolves any conflicts in the evidence presented,

and if the evidence supports different, reasonable interpretations,

the jury decides which interpretation to believe.’”    United States

v. Hagbegger, 370 F.3d 441, 444 (4th Cir. 2004)(quoting United

States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994)).     This court

has repeatedly held that the uncorroborated testimony of a single


                                 4
witness at trial may be sufficient to support the jury’s verdict.

See, e.g., United States v. Wilson, 115 F.3d 1185, 1190 & n.9 (4th

Cir. 1997).

     We find that, in viewing the evidence in the light most

favorable to the government, there was sufficient evidence to

support the jury’s verdict on Counts 1, 2, and 4.        See United

States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999) (providing

elements of 21 U.S.C. § 841(a)); United States v. Wilson, 135 F.3d

291, 306 (4th Cir 1998)(providing elements of conspiracy with

intent to distribute and to distribute crack cocaine).

     The same may not be said of Martin’s § 924(c) conviction

(Count 5).    Martin contends that the conduct underlying that

conviction was his trading a quantity of cocaine base for a

firearm, and that Watson v. United States, 128 S. Ct. 579 (2007),

decided after sentence was imposed here, establishes that such

conduct does not constitute a § 924(c) violation.    Because this

argument is raised for the first time on appeal, we review for

plain error only.   See Fed. R. Crim P. 52(b); United States v.

Olano, 507 U.S. 725, 732-35 (1993).    In order to prevail under

Olano, Martin must demonstrate that an error occurred, that the

error was plain, and that it affected his substantial rights.   See

Olano, 507 U.S. at 732.   Even if he makes that showing, we would

not exercise our discretion to notice the error unless the error

“seriously affected the fairness, integrity, or public reputation


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of judicial proceedings.”        United States v. Higgs, 353 F.3d 281,

324 (4th Cir. 2003).      Here, the government correctly concedes that

Martin has made the necessary showing and that we should exercise

our discretion to notice the error.        We therefore vacate Martin’s

§ 924(c) conviction.



                                     II.

     Martin argues the district court erred in not including his

proposed jury instruction on weaker and less satisfactory evidence

in its charge to the jury.       Martin argues this jury instruction was

necessary based upon the lack of physical and forensic evidence

linking him to the drug distributions and the inability of the

district court to define reasonable doubt.           We disagree.

     This court considers de novo whether a district court has

properly instructed a jury on the statutory elements of an offense,

see United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996), but

reviews for abuse of discretion the district court’s decision of

whether   to   give   a   jury   instruction   and   the   content   of   the

instruction.    See United States v. Abbas, 74 F.3d 506, 513 (4th

Cir. 1996).     The court’s denial of a proposed jury instruction

constitutes reversible error only if the proposed jury instruction

“(1) was correct; (2) was not substantially covered by the court’s

charge to the jury; and (3) dealt with some point in the trial so

important, that failure to give the requested instruction seriously


                                      6
impaired the defendant’s ability to conduct his defense.”                   United

States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995).

        We find that the district court did not err in refusing to

include Martin’s proposed jury instruction because it is not a

correct statement of law.          We have consistently held that the

district court, when instructing the jury, “need not, and in fact

should not, define the term ‘reasonable doubt’ even upon request.”

United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998).                     The

district court properly instructed the jury on reasonable doubt and

their   duty   to   interpret    the   evidence       presented     at   trial   and

determine its weight.     Additionally, Martin had the opportunity to

argue the lack of physical or forensic evidence to the jury in his

closing   statement,    and     therefore,      the     failure     to   give    this

instruction did not impair his defense.



                                       III.

     Martin    argues   the     district      court    erred   in    allowing     the

government to improperly bolster the testimony of their other

witnesses through Sergeant Purkey’s testimony and the admission of

the video detailing a controlled buy.            We disagree.

     This court reviews whether the district court’s decision to

admit evidence was an abuse of discretion.                See United States v.

Clark, 986 F.2d 65, 68 (4th Cir. 1993).               The admission of evidence

“will not be turned over on appeal unless the court’s decision is


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shown to be arbitrary or irrational.” United States v. Bailey, 990

F.2d 119, 122 (4th Cir. 1993).

     Martin’s objection to the videotape, as only depicting a

portion of the controlled buy in which he is absent, goes to its

weight, not its admissibility.        The videotape corroborated the

testimony of other witnesses, and we find its admission was not

arbitrary or irrational.   Sgt. Purkey’s testimony on the types of

drugs, the typical drug weights found in Harrison County, and the

drug weights associated with the other witnesses’ testimony likely

aided the jury in ascertaining the truth.          Additionally, the

district court properly provided limiting instructions and gave the

defendant the opportunity to voir dire Sgt. Purkey and conduct

extensive cross examination of his testimony.    We find, therefore,

the district court did not commit reversible error in admitting

Sgt. Purkey’s testimony.



                                 IV.

     The government appeals Martin’s sentence, arguing the district

court improperly concluded, based upon United States v. Milam, 443

F.3d 382 (4th Cir. 2006), and United States v. Revels, 455 F.3d 448

(4th Cir. 2006), that it could not enhance the defendant’s sentence

based upon facts not found by the jury nor admitted by the

defendant.   We agree.




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      Martin faced a maximum possible sentence of life imprisonment

for Count 1, conspiracy to possess with intent to distribute and to

distribute in excess of 50 grams of cocaine base.          See 21 U.S.C. §§

846 and 841(b)(1)(A).      The jury, in its verdict, found no specific

relevant drug weight beyond the fifty grams or more of cocaine base

in Count 1.    The presentence report attributed 11.23 kilograms of

cocaine base to the defendant and added sentencing enhancements for

his managerial role in the offense, pursuant to United States

Sentencing Guidelines § 3B1.1, and obstruction of justice, pursuant

to United States Sentencing Guidelines § 3C1.1.            The presentence

report determined Martin’s total offense level to be 43 and his

criminal history category to be IV, resulting in a guideline range

of   life   imprisonment   with   an   additional   five    years,   to   run

consecutively, for Count 5.        The district court concluded, based

upon Milam and Revels, that it could only rely upon the factual

findings made by the jury.*       The court, therefore, attributed only

50 grams of crack cocaine to the defendant and did not include the

additional sentencing enhancements, resulting in a new offense

level of 32.   The district court sentenced Martin to 210 months for

Counts 1, 2, and 4 and 60 months for Count 5, to be served

consecutively to the other Counts.


      *
      We note that the district court acknowledged during Martin’s
sentencing that it may have misinterpreted the law and, but for its
misunderstanding, the court would have adopted the findings in the
Presentence Report and would have found a life sentence reasonable
and justified.

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     The federal sentencing guidelines are now advisory following

United States v. Booker, 543 U.S. 220 (2005). When calculating the

guideline range sentencing courts may make factual determinations

regarding    sentencing      enhancements         by   a    preponderance      of    the

evidence.    United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005)

(“‘Booker does not in the end move any decision from judge to jury,

or change the burden of persuasion.’”) (citation omitted).                          Both

Milam and Revels involved pre-Booker dispositions and neither of

these    decisions,     as   noted    in    Revels,        affect   the   post-Booker

sentencing court’s calculation of a defendant’s advisory guideline

range.      Revels,    455   F.3d     at   451     n.2.       The   district   court,

therefore,    erred     in   concluding         that   it    was    unable   to     make

additional factual findings on sentencing enhancements for the

amount of drugs, the defendant’s role in the offense, and whether

the defendant obstructed justice.

     Martin argues the district court’s misinterpretation of Milam

and Revels should not result in a new sentence because his sentence

is still reasonable.         The reviewing court examines a post-Booker

sentence for unreasonableness.                  Booker, 543 U.S. at 264.                A

sentence may be unreasonable for both substantive and procedural

reasons.     United States v. Moreland, 437 F.3d 424, 434 (4th Cir.

2006) (stating that a substantially unreasonably sentence occurs

when “the court relies on an improper factor or rejects policies

articulated    by     Congress   or    the      Sentencing     Commission”        and   a


                                           10
procedurally unreasonable sentence occurs when the district court

“provides an inadequate statement of reasons or fails to make a

necessary     factual    finding”).          The    district      court’s

misinterpretation of the law warrants a finding that Martin’s

sentence was unreasonable.

      Accordingly, we vacate Martin’s § 924(c) conviction, affirm

his   other   convictions,   vacate   his   sentence,    and   remand   for

resentencing.


                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




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