                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4368



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TIMOTHY HAMES,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-44-MU)


Submitted:   December 19, 2005            Decided:   January 31, 2006


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


Affirmed in part, vacated in part, and remanded by unpublished per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


Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Karen S. Marston, 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Unpublished opinions are not binding precedent in this circuit.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:

            Timothy Hames was convicted by a jury of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(2000).    He received a sentence of seventy months of imprisonment.

On appeal, he argues that the district court erred in denying his

motion for judgment of acquittal based on insufficiency of the

evidence    and   abused   its    discretion   in    its    jury   instruction

regarding constructive possession. Citing United States v. Booker,

125 S. Ct. 738 (2005), Hames also 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, and that the district

court   erred     in   applying   enhancements      under   U.S.   Sentencing

Guidelines Manual § 2K2.1(b)(5) (2002) and USSG § 2K2.1(c)(1)(A).

For the reasons that follow, we affirm Hames’ conviction, but

vacate his sentence and remand for resentencing.

            Hames first argues that the district court erred in

denying his motion for judgment of acquittal based on insufficiency

of the evidence.       This court reviews de novo the district court’s

decision to deny a Fed. R. Crim. P. 29 motion.              United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997).             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 favorable to the Government, to support it.”                  Glasser v.

United States, 315 U.S. 60, 80 (1942); United States v. Wills, 346


                                    - 2 -
F.3d 476, 495 (4th Cir. 2003), cert. denied, 542 U.S. 939 (2004).

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 (4th Cir.

1996)).    The court reviews both direct and circumstantial evidence

and   permits    “the    government     the     benefit    of   all   reasonable

inferences      from    the   facts    proven      to   those   sought   to    be

established.”     United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982).     Circumstantial evidence may be sufficient to support

a conviction “even though it does not exclude every reasonable

hypothesis consistent with innocence.”             United States v. Jackson,

863 F.2d 1168, 1173 (4th Cir. 1989). Witness credibility is within

the sole province of the jury, and the reviewing court will not

reassess the credibility of testimony.             United States v. Saunders,

886 F.2d 56, 60 (4th Cir. 1989).              We have reviewed the parties’

briefs and the materials submitted in the joint appendix and

conclude that sufficient evidence supports the jury’s verdict.                 We

therefore find the district court did not err in denying the

motion.

            Next, Hames argues that the district court erred in its

jury instruction regarding constructive possession.              Specifically,

he argues that the court’s instruction did not make knowledge an


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essential   element    to   a   finding    of   guilt   under   a   theory   of

constructive possession.        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). Possession may be actual or constructive. United States v.

Rusher, 966 F.2d 868, 878 (4th Cir. 1992). “In order to obtain a

conviction on a theory of constructive possession, the Government

must demonstrate through direct or circumstantial evidence ‘that

the defendant exercised, or had the power to exercise, dominion and

control over the item.’”        United States v. Shorter, 328 F.3d 167,

172 (4th Cir. 2003) (quoting United States v. Jackson, 124 F.3d

607, 610 (4th Cir. 1997); see United States v. Blue, 957 F.2d 106,

107 (4th Cir. 1992).

            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).          In this case, the court made it

clear in its instructions to the jury that proximity to the gun

alone   could   not   establish    constructive    possession.        We   have

reviewed the court’s instructions in light of the law of this




                                    - 4 -
circuit concerning constructive possession and find no abuse of

discretion.

              Last, with respect to Hames’ challenge to his sentence

under Booker, he did not raise a Sixth Amendment challenge to the

Guidelines below; we therefore review for plain error.                 United

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

demonstrate plain error, Hames must establish that error occurred,

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

Id. at 547-48.     If a defendant establishes these requirements, the

court’s “discretion is appropriately exercised only when failure to

do so would result in a miscarriage of justice, such as when the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 555 (internal quotation marks and citation omitted).

              In Booker, the Supreme Court held that the mandatory

Guidelines scheme that provided for sentence enhancements based on

facts found by the court violated the Sixth Amendment. Booker, 125

S. Ct. at 746-48, 755-56.        The Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the Guidelines, thus

making the Guidelines advisory.         Id. at 756-57.      Subsequently, in

Hughes, this court held that a sentence that was imposed under the

pre-Booker mandatory sentencing scheme and was enhanced based on

facts found by the court, not by a jury or admitted by the


                                      - 5 -
defendant, constitutes plain error that affects the defendant’s

substantial rights and warrants reversal under Booker. Hughes, 401

F.3d at 546-56.

           Here, Hames maintains that he did not admit to the facts

underlying the district court’s four-level enhancement under USSG

§   2K2.1(b)(5)      (defendant    used    or   possessed      the    firearm      in

connection    with    another     felony   offense,        kidnaping),      and   the

application of the cross-reference to USSG § 2A4.1 under USSG §

2K2.1(c)(1)(A)     (instructing      to    apply    base    offense     level     for

kidnaping if higher).      Therefore, he argues that the enhancements,

found by a preponderance of the evidence, violated his Sixth

Amendment rights.       Because Hames’ 70-month sentence exceeds the

maximum authorized by the facts found by the jury, we conclude that

the district court committed plain error in sentencing Hames and

that the error requires resentencing.              Hughes, 401 F.3d at 547.1

           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    factual    findings    appropriate       for      that

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


      1
      As we noted in Hughes, “We of course offer no criticism of
the district judge, who followed the law and procedure in effect at
the time” of Hames’ sentencing. Hughes, 401 F.3d at 545 n.4.

                                     - 6 -
consider      this    sentencing   range    along    with   the   other   factors

described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and

then impose a sentence.         Id.      If that sentence falls outside the

Guidelines range, the court should explain its reasons for imposing

a non-Guidelines sentence, as required by 18 U.S.C.A. § 3553(c)(2)

(West 2000 & Supp. 2005).          Id.     The sentence must be “within the

statutorily prescribed range and . . . reasonable.”                Id.

               Based on the foregoing, we affirm Hames’ conviction and

vacate his sentence and remand for resentencing.2             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




       2
      Because we vacate Hames’ sentence, it is unnecessary for us
to reach his challenge to his Guidelines calculation. Hughes, 401
F.3d at 556 n.15.

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