                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4985



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DANIEL DUPREE-BARTON FOSTER,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Chief
District Judge. (CR-04-172)


Submitted:   November 18, 2005            Decided:   January 4, 2006


Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per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


Steven D. Briglia, BRIGLIA & HUNDLEY, PC, Fairfax, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael E.
Rich, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           A   jury    convicted    Daniel   Dupree-Barton   Foster   of

possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (West 2000 & Supp. 2005).

Foster was sentenced to forty-six months in prison.             He now

appeals.   We affirm the conviction but vacate the sentence and

remand for resentencing.



                                     I

           Foster 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) (quoting

United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995)).          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).       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). Witness credibility is within the sole

province of the jury, and we will not reassess the credibility of




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testimony.    United States v. Saunders, 886 F.2d 56, 60 (4th Cir.

1989).

            To sustain a conviction under § 922(g)(1), the Government

must establish that: the defendant was a convicted felon; he

knowingly possessed the firearm; and the firearm traveled in

interstate commerce.       United States v. Langley, 62 F.3d 602, 606

(4th Cir. 1995) (en banc).        Here, Foster stipulated that he was a

convicted    felon   and   that   the   ammunition   and   firearm   had   the

requisite nexus to interstate commerce.              The issue, then, was

whether there was substantial evidence establishing possession.

            At trial, Arlington County, Virginia, Detective Darien

Cupka testified that on January 3, 2003, he attempted to stop a

Buick.      The driver of the Buick disregarded Cupka’s repeated

instructions to stop the car, and a chase ensued.             At one point,

the driver, Jonathan Baranowski, lost control of the car, which

spun, hit a sign post, crossed a median, and came to a stop.               The

passenger pointed a black semiautomatic handgun at Cupka.              Cupka

identified Foster as the passenger.         The driver gained control of

the car, which proceeded south in the northbound lane of a major

road toward Crystal City. Soon, a police dispatcher broadcast that

an off-duty officer had located a vehicle at Crystal City from

which two suspects had fled.       Cupka drove to Crystal City, where he

met the officer.      He testified that no more than three minutes




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elapsed between the time the Buick left the scene and his arrival

at Crystal City.

              Officer Philip Mulvaney testified that he was in his

personal car when he observed the Buick driving recklessly.                  He

decided to follow the Buick, which parked in front of a dumpster in

Crystal City.        Mulvaney parked his car nearby.     He noticed that two

men were inside the Buick.           Mulvaney heard a metallic sound, then

saw the two men running from the Buick.             He identified Foster and

Jonathan Baranowski as the two men.              When Cupka arrived, he and

Mulvaney walked to the dumpster.                Inside the virtually empty

dumpster, they saw a black semiautomatic handgun resembling the gun

that Foster had pointed at Cupka.              Forensic tests showed that it

was a loaded Hi Point 9 millimeter semiautomatic.

              Carlita Tuck testified that she had pled guilty to making

false statements in connection with the acquisition of a handgun.

She stated that she had purchased four handguns, which she had

given Anthony Baranowski.            Anthony Baranowski is the brother of

Jonathan Baranowski.        The handguns were all Hi Point 9 millimeter

semiautomatics.

              This testimony was sufficient to convict Foster.            Cupka

testified that Foster pointed a black semiautomatic handgun at him

from inside a Buick.           Minutes later, Mulvaney heard a metallic

sound   and    saw    Foster   and   Baranowski    running   from   the   Buick.




                                       - 4 -
Mulvaney and Cupka then discovered a gun matching the description

of the one that Foster had pointed at Cupka in a nearby dumpster.1



                                  II

          Foster also claims that his forty-six month sentence

violates the rule announced in United States v. Booker, 125 S. Ct.

738 (2005).   Because Foster raised this Sixth Amendment claim

below, our review is de novo.     See United States v. Mackins, 315

F.3d 399, 405 (4th Cir. 2003).

          Foster’s base offense level was fourteen.         See U.S.

Sentencing Guidelines Manual § 2K2.1(a)(6) (2003). Two levels were

added for obstruction of justice for reckless endangerment because

Foster pointed a gun at a law enforcement officer.          See USSG

§ 3C1.2. Foster’s total offense level was 16, his criminal history

category was V, and his guideline range was 41-51 months.    Without

the enhancement, Foster’s total offense level would have been 14,


     1
      Several months after trial, the Government informed defense
counsel that Tuck had told the Government that she had lied at
Foster’s trial. Tuck had purchased the guns but had given them to
Earl Moore. Moore told her that he then transferred one of the
guns to Anthony Baranowski.      Anthony Baranowski informed the
Government that he purchased the gun from Moore on Foster’s behalf.

     Foster contends that Tuck’s admitted perjury casts doubt on
the sufficiency of the evidence to the extent that reversal is
required.   We disagree.    Custody of the gun prior to Foster’s
possession of it is perhaps of some interest, but irrelevant to the
fact that Cupka identified Foster as the person who pointed the gun
at him. Had Tuck not testified, Foster’s conviction would stand,
for possession is established through Cupka’s and Mulvaney’s
testimony alone.

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and his guideline range would have been 33-41 months in prison.

Because Foster’s sentence of forty-six months’ imprisonment exceeds

the maximum authorized by the facts found by the jury, there was a

Sixth Amendment violation requiring resentencing.                See United

States v. Evans, 416 F.3d 298, 300 (4th Cir. 2005).2



                                   III

           We accordingly affirm Foster’s conviction but vacate his

sentence and remand for resentencing in accordance with Booker.3

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



      2
      As we have stated, “We of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of [Foster’s] sentencing.” United States v. Hughes, 401 F.3d
540, 545 n.4 (4th Cir. 2005).
      3
      Although the sentencing guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[them] 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 United
States v. Hughes, 401 F.3d at 546. The court should consider this
range along with the other factors identified at 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005), and then impose a sentence.
Id. If that sentence falls outside the guideline range, the court
should explain its reasons for imposing a non-guideline sentence as
required by 18 U.S.C.A. § 3553(c)(2).    Id. The sentence must be
“within the statutorily prescribed range . . . and reasonable.”
Id. at 546-47.

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