                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4313



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ANDRE TIAWAN BRITT,

                                            Defendant - Appellant.



Appeal from the United States District      Court for the Middle
District of North Carolina, at Durham.       James A. Beaty, Jr.,
District Judge. (CR-03-184)


Submitted:   November 22, 2006         Decided:     February 13, 2007


Before MICHAEL and GREGORY, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished per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


Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Douglas Cannon, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Andre Tiawan Britt was tried and convicted for various

drug and firearm offenses.              On appeal Britt asserts that the

district court abused its discretion by denying his motion to sever

counts charging him with being a felon in possession of a firearm.

Britt   also    argues   that    his    convictions   are   not   supported   by

substantial evidence.           Because these arguments lack merit, we

affirm his convictions. Britt also asserts that the district court

committed      plain   error    in     calculating    his   offense   level   at

sentencing.     We agree and accordingly vacate Britt’s sentence and

remand for resentencing.



                                         I.

            The relevant events began on February 13, 2003, when

police conducted the first of two searches of a house located at

1507 McConnell Road in Greensboro, North Carolina. The police went

to the house to investigate complaints of drug dealing.                A woman

who identified herself as Juanita Stacee answered the officers’

knock at the door.       When the officers asked if they could enter the

house, Stacee summoned Britt who then motioned the officers inside

and consented to a search of the premises.                  While no drugs or

firearms were found on Britt’s person, officers found a .38 caliber

revolver, 4.8 grams of crack, baggies of marijuana, and scales in




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various rooms throughout the house. Britt was arrested as a result

of the search.

           On April 30, 2003, the Greensboro police returned to the

house and executed a search warrant.       Although Britt was not

present, seven others were.      This search turned up marijuana,

crack, various kinds of ammunition, and numerous firearms. Britt’s

fingerprints were found on a number of documents seized from the

house, including water and sewer bills, a tax assessment, and the

purchase order for the firing pin of a 9mm semi-automatic pistol

also found during the search.

           In a superceding indictment filed on October 28, 2003,

Britt was charged with eight firearm and drug-related counts.   All

but one of the charges resulted from the searches of the McConnell

Road house.   Unlike the other charges, Count Five resulted from a

search of Britt’s car on February 27, 2003, and charged him with

being a convicted felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1).   Counts One and Eight charged Britt with two

additional § 922(g) violations for possessing the .38 caliber

revolver recovered in the February 13 search and possessing the 9mm

semi-automatic pistol and accompanying ammunition found on April

30.   On November 12, 2003, Britt filed a motion pursuant to Fed. R.

Crim. P. 14(a) requesting that all three § 922(g) counts be severed

from trial of the remaining five offenses.     Britt argued that he

would suffer prejudice if the jury learned that he was a convicted


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felon.     At a hearing on December 2, 2003, the district court

granted Britt’s motion to sever the felon-in-possession charge that

arose out of the car search while denying his motion as to the

counts    that   resulted   from   the       McConnell      Road    searches.         The

government later dismissed the severed charge.

            A jury ultimately found Britt guilty of possession of a

firearm    by    a   convicted     felon      in    violation         of     18   U.S.C.

§   922(g)(1)(Count    One);     possession        with    intent     to     distribute

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)

(Count Two); possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i)

(Count    Three);     maintaining     a       place       for   the        purposes    of

manufacturing, distributing, and using controlled substances in

violation of 21 U.S.C. §§ 856(a)(1) and (b) (Count Four); and

possession of ammunition and a firearm by a felon in violation of

18 U.S.C. § 922(g)(1)(Count Eight).

            Britt appeals his convictions and sentence, arguing first

that the district court abused its discretion by denying his motion

to sever Counts One and Eight.               He also contends that there was

insufficient evidence for any rational trier of fact to find beyond

a reasonable doubt that he possessed the firearms and drugs for

which he was convicted.          Finally, Britt challenges the district

court’s calculation of both his offense level and criminal history




                                         4
category under the then-mandatory Sentencing Guidelines. We review

each claim in turn.



                                  II.

           Joinder of offenses is permitted under Fed. R. Crim. P.

8(a) when the crimes charged “are of the same or similar character,

or are based on the same act or transaction, or are connected with

or constitute parts of a common scheme or plan.”               A defendant

appealing the denial of his Rule 14(a) motion for severance must

show that the joinder was “so manifestly prejudicial that it

outweighed the dominant concern with judicial economy[.]”           United

States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995) (quoting United

States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980)).         We review

the district court’s refusal to sever Counts One and Eight for

abuse of discretion.     United States v. Foutz, 540 F.2d 733, 736

(4th Cir. 1976).

           The common factual basis connecting all of the offenses

for which Britt was tried was that he maintained control over the

McConnell Road house and the activities occurring there. On appeal

Britt does not dispute that the felon-in-possession of firearms

offenses charged in Counts One and Eight rely on evidence that

overlaps almost completely with the evidence introduced as to the

rest of the offenses at trial.          Instead, Britt simply maintains

that   considerations   of   judicial    economy   do   not   outweigh   the


                                   5
“overwhelming prejudice” that joinder caused by allowing the jury

to learn of his prior felony conviction, a fact that would not

otherwise have been admissible in the government’s case-in-chief.

Appellant’s Br. at 15.

            Britt   has    failed       to       show    that    any    possibility    of

prejudice     materialized       in    his        case.         Undercutting      Britt’s

conclusory    assertion     of    prejudice         is    the    fact   that    the   jury

acquitted him of the drug and firearm offenses charged in Counts

Six and Seven.      At bottom, Britt’s claim of prejudice amounts to

speculation that a separate trial for the felon-in-possession

counts   might   have     given       him    a    better      chance    at     additional

acquittals.      This     contention         is   not     a   sufficient     ground   for

severance. United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir.

1984). We therefore conclude that the district court did not abuse

its discretion in denying the motion to sever.



                                        III.

            Britt next argues that his convictions for the drug and

firearm offenses charged in Counts One, Two, Three, and Eight must

be reversed because they are not supported by sufficient evidence.*

Our standard of review requires that the jury’s verdict be upheld



     *
      Britt does not challenge the sufficiency of the evidence for
his conviction on Count Four, the charge for maintaining a place
for the manufacture, distribution, and use of controlled
substances.

                                             6
if there is substantial evidence in the record to support it.

United States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999).                   In

making this determination, “we view the evidence in the light most

favorable to the government and inquire whether there 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.”      Id. (internal quotation omitted).

           We conclude that there is substantial evidence in the

record supporting the jury’s determination that Britt possessed the

weapons   and   drugs   in    question.       When   police   arrived   at    the

McConnell Road house on February 13, 2003, Britt exercised dominion

and control over the premises.        Moreover, while the search of the

house was under way, a police officer observed Britt briefly duck

into the same closet from which police retrieved the 4.8 grams of

crack and the .38 caliber gun.            Finally, when he was arrested,

Britt asserted that the only other person in the house, Juanita

Stacee, “had nothing to do with it.”          J.A. 109.   Coupled with proof

of his prior felony conviction, this evidence is sufficient to

support the jury’s finding of guilt on Counts One through Three

(felon-in-possession     of    a   firearm,    possession     with   intent   to

distribute crack, and possession of a firearm in relation to a drug

trafficking crime). As to the 9mm firearm and ammunition recovered

on April 30, 2003, and charged in Count Eight, a reasonable juror

could have found possession based on the testimonial and physical


                                      7
evidence concerning Britt’s on-going relationship to the premises

as well as a receipt bearing Britt’s fingerprints which showed that

a girlfriend of his had purchased the firing pin for the weapon.

            We therefore affirm Britt’s convictions.



                                      IV.

            Britt, who was sentenced in accordance with the then-

mandatory   Sentencing     Guidelines,      argues    that    the    sentence   he

received violates his Sixth Amendment rights.            We review for plain

error    because   Britt   raised     no    objection    in    the    sentencing

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

2005).

            At   the   sentencing    hearing    the   district       court   asked

Britt’s lawyer if he had “full opportunity to . . . determine

whether any objections should be filed [to the presentence report]

on [Britt’s] behalf.” J.A. 289. Britt’s lawyer responded, “I did.

Originally there were objections, Your Honor; but as Ms. Boggs

noted, all of those have been addressed and resolved in the

presentence report.”       Id.      The district court then adopted the

factual findings made in the presentence report (PSR).                       As a

result, the court increased Britt’s offense level pursuant to the

Guidelines on the grounds that:             (1) the offenses involved five

firearms, see § 2K2.1(b)(1)(A); (2) the firearm possessed on

February 13, 2003, was stolen, see § 2K2.1(b)(4); and (3) the


                                       8
ammunition and firearm possessed on April 30, 2003, were used or

possessed in connection with another felony, see § 2K2.1(b)(5).

            Without these enhancements Britt would have had a total

offense level of 20 with a sentencing range of 41 to 51 months for

Counts One, Two, Four, and Eight and a mandatory five-year sentence

on Count Three to run consecutively. With the enhancements Britt’s

offense level totaled 28 and yielded a sentencing range of 97 to

121    months,    followed    by    the   mandatory,     consecutive    five-year

sentence.        The   district      court    ultimately    imposed     concurrent

sentences of 103 months on Counts One, Two, Four, and Eight and a

consecutive sentence of five years on Count Three.                      Given the

Supreme Court’s holding in United States v. Booker, 543 U.S. 220

(2005), Britt’s sentence can be upheld only if the facts supporting

these enhancements were either found by the jury or admitted by

him.    543 U.S. at 244.

            It is undisputed that the jury did not find the facts

necessary    to    support    each    enhancement.         In   fact,   Britt   was

acquitted of possessing two of the firearms on which the first

enhancement is based.          As to admission, our recent case law has

established that a bare failure to object to the facts contained in

the PSR cannot be construed as an admission for Sixth Amendment

purposes.    See United States v. Milam, 443 F.3d 382, 388 (4th Cir.

2006).     The question in this case is whether the statement of

Britt’s    lawyer      that   all    objections    had   been    “resolved”     can


                                          9
nevertheless be construed as an admission. We have recognized that

in assessing whether a defendant has made an admission for Booker

purposes,   “verbalizations    necessarily   fall   along   a    spectrum.”

United States v. Revels, 455 F.3d 448, 450 (4th Cir. 2006).          At one

end of the spectrum, and constitutionally insufficient to deem a

fact admitted, is silence.      Id.     At the other end, and clearly

constituting an admission, are statements such as “I admit.”            Id.

In Revels we held that the defendant’s statement that he had no

objections to the contents of the PSR was not an admission for

Sixth Amendment purposes. Id. at 451. While the defense counsel’s

statement here that no objections to the PSR would be raised

because they had previously been “resolved” falls closer to the

middle of the silence-to-admission spectrum, we conclude that it is

still on the silence side of the spectrum.          For Sixth Amendment

purposes, there is no material difference between a defendant’s

statement that he has no objections to the PSR, as in Revels, and

the statement here that unspecified objections to the PSR have been

resolved.    Both situations would require a court to draw the

inference of admission in order to deem the PSR’s enhancement facts

to be admitted by the defendant.        Because the drawing of such an

inference   by   the   court    relieves     the    government     of   its

constitutionally assigned burden of proving beyond a reasonable

doubt all facts that mandate an increase in the maximum sentence,

see Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), we conclude


                                   10
that Britt’s Sixth Amendment rights were violated.

            As   a   result   of   the    Sixth   Amendment   error,   Britt’s

sentence of 103 months for Counts One, Two, Four, and Eight more

than doubled the high end of the otherwise applicable Guidelines

range.     Accordingly, we will notice the plain error and vacate

Britt’s sentence.      We remand for the district court to resentence

Britt, treating the Guidelines as advisory.             Hughes, 401 F.3d at

546-47.    This disposition renders as moot the final challenge that

Britt has raised to his sentence.

                                     * * *

            Britt’s convictions are affirmed, and his sentence is

vacated.    His case is remanded for resentencing.



                                                          AFFIRMED IN PART,
                                                           VACATED IN PART,
                                                               AND REMANDED




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