UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4569

THOMAS CAROLINA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-97-42)

Submitted: January 12, 1999

Decided: April 27, 1999

Before WIDENER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per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

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COUNSEL

Dannie R. Sutton, Jr., GOODWIN, SUTTON, DUVAL & GEARY,
P.L.C., Richmond, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, James B. Comey, Assistant United States Attorney,
Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Following a one-day jury trial, Thomas Carolina was convicted in
district court of simple possession of marijuana. He was also con-
victed of being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1) (1994). Carolina filed a timely
notice of appeal. Carolina argues that there was insufficient evidence
to convict him of the firearm and ammunition charges. We affirm in
part and vacate in part, and remand.

Carolina was a passenger in a vehicle that was stopped by Rich-
mond police for having a smoked plastic cover over its rear license
plate. As a Richmond police officer approached the vehicle, he saw
Carolina making furtive movements, his arms moving to the right side
of the car and reaching down. The officer instructed Carolina to show
his hands, but Carolina did not comply immediately. The officer then
drew his weapon and ordered Carolina to show his hands, and Caro-
lina eventually complied. After asking Carolina and the driver to
leave the vehicle, police conducted a search and found a loaded fire-
arm behind the passenger seat. Police also searched Carolina's person
and found four small bags of marijuana.

The elements of 18 U.S.C. § 922(g)(1) are: (1) previous conviction
of a felony; (2) knowingly shipping, transporting, possessing, or
receiving any firearm or ammunition; and (3) the firearm or ammuni-
tion must have been in or affected interstate commerce. See United
States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc). At trial,
Carolina stipulated that he was previously convicted of a felony and
that the firearm had traveled in interstate commerce at some point in
its existence.

Carolina argues that his firearm conviction should be reversed
because the gun was not his and because there was insufficient evi-

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dence that he was in possession or control of the gun to be found as
a felon possessing a firearm. "Knowing possession" may be estab-
lished by proving that the defendant was in constructive possession
of a firearm. See United States v. Blue, 957 F.2d 106, 107 (4th Cir.
1992). Constructive possession exists when the defendant exercises,
or has the power to exercise, dominion and control over the item, see
United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980), and
has knowledge of the item's presence. See United States v. Schocket,
753 F.2d 336, 340 (4th Cir. 1985).

In assessing sufficiency of evidence, we must sustain a jury's ver-
dict "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). Carolina's movements while police were approaching
the vehicle were consistent with an attempt to hide the firearm. The
firearm was discovered between the passenger seat and the rear pas-
senger door, a location over which Carolina had access while seated
in the car. At trial, a police officer testified that during a conversation
with Carolina, Carolina stated that police were very quick in drawing
their weapons, faster than he was. When police asked if the gun was
loaded, Carolina nodded his head. Also, Carolina produced conflict-
ing testimony concerning his knowledge of the firearm's location in
the car. He first testified that as soon as he entered the car, he noticed
the driver had a gun. Later, Carolina stated that he did not know
where the gun was in the car. Construing this evidence in the light
most favorable to the Government, we find it sufficient to support the
firearm conviction.

Carolina's conviction and sentence on the ammunition charge,
however, must be vacated. There was no stipulation nor evidence
presented at trial that the ammunition traveled in interstate or foreign
commerce, an element of the offense. The Government agrees in its
brief that vacating this conviction is warranted. Although we note that
Carolina was sentenced to concurrent sentences on the firearm and
ammunition charges, we further note that he was sentenced at the
upper range of the Sentencing Guidelines. See U.S. Sentencing Guide-
lines Manual Ch. 5 Pt. A (1995). Because it is unclear whether the
district court would impose the maximum penalty for the firearm con-
viction alone, we vacate Carolina's sentence and remand for resen-
tencing.

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For the reasons stated, Carolina's conviction and sentence for pos-
session of ammunition by a felon are vacated; his conviction for pos-
session of a firearm by a felon is affirmed, but his sentence is vacated
and remanded 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 IN PART, AND REMANDED

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