                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4934



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


HAROLD ROBERT RATTLER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:05-cr-00036)


Submitted:   July 13, 2007                 Decided:   August 15, 2007


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


John C. Hunter, THE JOHN C. HUNTER LAW FIRM, P.L.L.C., Asheville,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           This case arises out of a domestic violence incident

between   Harold    Rattler    and    his   girlfriend,    Marlena   Toineeta.

Rattler was charged with assault with a dangerous weapon, 18 U.S.C.

§§ 113(a), 1153 (2000) (count one); using and carrying a firearm

during a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2000)

(count two); possession of a firearm by an unlawful user of a

controlled substance, 18 U.S.C. § 922(g)(3) (2000) (count three);

and possession of an unregistered firearm, 26 U.S.C. § 5861(d)

(2000) (count four).1         The jury found Rattler guilty of counts

three and four, but was unable to reach a verdict with respect to

counts one and two.

           In the Presentence Report (PSR), to calculate Rattler’s

base offense level, the probation officer cross-referenced to the

offense level calculations for aggravated assault under the United

States Sentencing Guidelines Manual (“USSG”) § 2A2.2(a) (2005) to

arrive at an offense level of 14.           The offense level was adjusted

upward because the assault involved the use of a dangerous weapon,

and   because      the   victim      sustained   serious     injuries.   USSG

§§ 2A2.2(b)(2); 2A2.2(b)(3)(B). Based on a resulting offense level

of 23 and a criminal history category of IV, Rattler’s Guidelines

range was 70 to 87 months of imprisonment.         Rattler objected to the


      1
      As discussed more fully herein, the indictment described the
provisions of 26 U.S.C. § 5861(d), but erroneously cited subsection
(b).

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PSR on the ground that the application of the cross-reference

violated his Sixth Amendment rights. The district court denied the

objection, concluding that the cross-reference was applicable based

on its finding that Rattler assaulted the victim, using a deadly

weapon   and      resulting   in   serious      injury.    The    court       imposed   a

sentence of 87 months’ imprisonment.

             On    appeal,    Rattler    contends      that      the    evidence     was

insufficient to support his convictions and that the court should

have granted his motions for judgment of acquittal.                      We review de

novo the district court’s decision to deny a Rule 29 motion.

United States v. Uzenski, 434 F.3d 690, 700 (4th Cir. 2006).

Where, as here, the motion was based on a claim of 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).        We review both direct and circumstantial evidence and

permit the “[G]overnment 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).

             Ratter first claims there was no evidence he used drugs

“close in time” to the possession of weapons or that his drug use

was   prolonged     or   consistent     for     purposes   of     the    §    922(g)(3)

conviction     (count    three).        He    also   argues      that    no    evidence

connected the drugs found in his home to him.                    Contrary to these


                                        - 3 -
arguments, the evidence presented at trial would allow a reasonable

fact       finder    to   conclude    that   Rattler’s        drug    use   was    neither

infrequent nor in the distant past.                    See United States v. Purdy,

264 F.3d 809, 812 (9th Cir. 2001).                 Marijuana was found in four

locations in his home, including a bag in the freezer and remnants

of marijuana cigarettes in three locations.                        Toineeta’s testimony

at trial and her statements prior to trial support the inference

that Rattler regularly consumed drugs.                   Viewed in the light most

favorable to the Government, the evidence was sufficient to sustain

Rattler’s conviction on count three.

               Rattler next argues that the evidence was insufficient to

support his conviction under 26 U.S.C. § 5861(b) (count four).2

Although the indictment and judgment cite subsection (b), the jury

instructions, the evidence, and the description of the offense

contained       in    both   the     indictment    and       the    judgment   refer    to

subsection (d), which prohibits the possession of a firearm that is

not properly registered.               Rattler contends that his conviction

should be reversed based on this error; however he did not raise

this issue below. We conclude that this apparent scrivener’s error

is not grounds for reversal.             The indictment informed Rattler that

he   was      charged     with     possession     of    an    unregistered        firearm,

specifically a weapon made from a shotgun having an overall length


       2
      Subsection (b) prohibits receipt or possession of a firearm
“transferred to him in violation of the provisions of this
chapter.”

                                         - 4 -
of less than 26 inches, as modified.       In addition, the evidence

presented by the Government related to the elements of the offense

of possession of an unregistered firearm, and the jury instructions

correctly cited the text and the elements of § 5861(d).       Absent

evidence that Rattler was prejudiced or misled, reversal is not

warranted. See Fed. R. Crim. P. 7(c)(3) (errors in indictments are

not grounds for dismissal “[u]nless the defendant was misled and

thereby prejudiced”).    To correct the error in the judgment,

however, we remand to the district court for the purpose of

entering a corrected judgment pursuant to Fed. R. Crim. P. 36.

This correction, of course, will have no effect on Rattler’s term

of imprisonment, or term of supervised release, nor will it restart

the limitations period for filing a motion under 28 U.S.C. § 2255

(2000).

           Finally, Rattler contends that his sentence is unlawful

because, in cross referencing to aggravated assault, the district

court made findings that increased his sentence beyond what it

would be based only on facts found by the jury.        However, this

general argument was rejected in United States v. Booker, 543 U.S.

220 (2005).   Booker did “not in the end move any decision from

judge to jury, or change the burden of persuasion.”           United

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

127 S. Ct. 121 (2006).    In sentencing defendants after Booker,

district   courts   continue   to   make   findings   necessary   for


                               - 5 -
enhancement, applying a preponderance of the evidence standard,

while taking into account that the resulting Guidelines range is

advisory only.   Id.        The sentencing court is authorized to make

factual   findings     in    order    to     determine   appropriately   the

defendant’s advisory range under the guidelines.                See United

States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).                  The

district court did not err in making the factual finding necessary

for the application of the assault cross-reference.

          Accordingly, we affirm Rattler’s convictions and sentence

but remand to the district court for correction of the statutory

citation in the judgment.            Because Rattler is represented by

counsel, we deny his motion to file a pro se brief and motion for

an extension of the time to do so.           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 AND REMANDED




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