                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4986



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


BILLY FRANK CHRISTIAN,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   Glen M. Williams, Senior
District Judge. (CR-04-27)


Submitted:   January 26, 2006          Decided:     February 22, 2006


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Matthew W. Greene, SMITH & GREENE, P.L.L.C., Fairfax, Virginia, for
Appellant.   John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Following a jury trial, Billy Frank Christian was found guilty

of violating 18 U.S.C. § 922(a)(6) by making false statements in

connection with his acquisition of a firearm.        Christian was

sentenced to fifty-one months of incarceration followed by three

years of supervised release.   Christian now appeals his conviction

and sentence.   We affirm his conviction, but vacate his sentence

and remand for resentencing.



                                I.

     Christian first contends that the evidence was insufficient to

convict him.    "A defendant challenging the sufficiency of the

evidence to support his conviction bears a heavy burden."   United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal

quotations omitted).    In deciding whether sufficient evidence

supports a conviction, we consider whether, taking the evidence in

the light most favorable to the Government, substantial evidence

supports the verdict.   Glasser v. United States, 315 U.S. 60, 80

(1942). “Substantial evidence is evidence that 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. Burgos, 94 F.3d 849, 862 (4th Cir 1996) (en banc).

We review both direct and circumstantial evidence and permit "the

Government the benefit of all reasonable inferences from the facts


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proven to those sought to be established."                 United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Witness credibility

is within the sole province of the jury, and we will not reassess

the credibility of testimony. United States v. Saunders, 886 F.2d

56, 60 (4th Cir. 1989).

     Section 922(a)(6) provides in pertinent part that it shall be

unlawful:

     for any person in connection with the acquisition or
     attempted acquisition of any firearm or ammunition from
     a . . . licensed dealer . . . knowingly to make any false
     or fictitious oral or written statement or to furnish or
     exhibit any false, fictitious, or misrepresented
     identification, intended or likely to deceive such . . .
     dealer . . . with respect to any fact material to the
     lawfulness of the sale.

18 U.S.C. § 922(a)(6). Christian argues that the Government failed

to   provide     any   evidence    that    deceptive      conduct     occurred.

Specifically, Christian contends that because the store clerk

possessed   no   discretionary     authority    over   the    course     of   the

firearms transaction, “there existed no evidence to demonstrate

that the deception of the store clerk had any impact, bearing or

relevance on the elements of the offence charged.”                 We disagree.

     We have stated that “[e]vidence that a defendant made a

knowing misrepresentation of a fact material to the legality of the

sale is sufficient to permit a reasonable jury to conclude that the

defendant   possessed     the     intent   to   deceive      the    dealer    or,

alternatively, that his statement was likely to deceive such

dealer.”    United States v. Rahman, 83 F.3d 89, 93 n.* (4th Cir.

                                      3
1996).      After a through review of the record, we find that the

Government presented such evidence.                Testimony established that

upon receiving both state and federal firearms forms, Christian

asked the store clerk if “they had to be filled out truthfully,”

and the clerk responded in the affirmative. Christian indicated on

the forms that he had not been convicted of a felony and that he

was   not      subject    to     court   order   for   harassing,   stalking,   or

threatening a child or partner.              The Government presented evidence

at trial that prior to completing those forms Christian had pleaded

guilty to a felony count of second degree burglary and that he was

the subject of a domestic violence protective order from the state

of Florida.       We conclude that in the light most favorable to the

Government, this evidence is sufficient to meet the deceptive

conduct requirement of § 922(a)(6).



                                           II.

      Christian next argues that he is entitled to resentencing

based     on     the     mandatory       application   of     federal   sentencing

guidelines.       See United States v. Booker, 125 S. Ct. 728, 764-65

(2005).        Because     the    record    reflects   that   Christian   did   not

preserve this claim below, we review it for plain error.                        See

United States v. Olano, 507 U.S. 725, 732 (1993); United States v.

White, 405 F.3d 208, 215 (4th Cir. 2005).               Although the Government

concedes that the district court committed an error that was plain,


                                            4
it argues that Christian cannot demonstrate actual prejudice as a

result of having been sentenced under a mandatory scheme.                       See

White,   405    F.3d    at    223-24.    Christian    contends    that    he    can

demonstrate prejudice because it is apparent from a statement made

by the district court that it would have acted differently under an

advisory scheme.        Specifically, Christian notes that the district

court stated, “This is a sentence at the low end of the guidelines,

and the least that I can give in accordance with the law.”                     This

statement could provide a “nonspeculative basis for concluding that

the treatment of the guidelines as mandatory affected the district

court’s selection of the sentence imposed.”               Id. at 223 (internal

quotations omitted).           Thus, we vacate Christian’s sentence and

remand the case for resentencing consistent with Booker.*



                                        III.

     Accordingly, we affirm Christian’s conviction, but vacate and

remand for resentencing.          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



     *
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “we of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Christian’s sentencing.

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