PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                    Case No: 04-3215

           UNITED STATES OF AMERICA

                            v.

                  CARL D. MCBANE,

                            Appellant



    On Appeal from the United States District Court
         for the Western District of Pennsylvania
              District Court No.: 03-cr-00228
   District Judge: The Honorable Donetta W. Ambrose



                 Argued October 21, 2005

Before: SMITH, BECKER, and NYGAARD, Circuit Judges

                (Filed: December 30, 2005)



     Counsel:      Sally A. Frick (Argued)
                     1601 Frick Building
                     Pittsburgh, PA 15219
                     Counsel for Appellant

                     Michael L. Ivory (Argued)
                     Bonnie R. Schlueter
                     Laura S. Irwin
                     Paul M. Thompson
                     Office of United States Attorney
                     700 Grant St.
                     Suite 400
                     Pittsburgh, PA 15219
                     Counsel for Appellee



                 OPINION OF THE COURT


SMITH, Circuit Judge.

       Appellant Carl McBane challenges jury verdicts
convicting him of one count of selling a stolen firearm in
violation of 18 U.S.C. § 922(j) and one count of making a
materially false statement to a federal agency in violation of 18
U.S.C. § 1001. McBane also seeks resentencing in light of the
Supreme Court’s decision in United States v. Booker, 

(2005). For the reasons set out below, we will uphold the
jury verdicts on both the firearm and false statement charges,
and we will remand the case to the District Court for

                               2
resentencing.

                               I.

        Carl McBane was employed as a full-time police officer,
with the rank of sergeant, for the borough of McKees Rocks in
Allegheny County, Pennsylvania at all times relevant to the
events described herein. On July 11, 1999, three members of
the McKees Rocks Police Department arrested Mark Suchoza.
Suchoza was booked and his personal belongings confiscated.
Among those belongings was a Henry Model Survival .22
caliber rifle. Though Suchoza was not charged with any crime
in connection with owning or possessing the rifle, it was not
returned to him when he was released from custody after paying
a fine for public intoxication.1 At the time, McBane was one of
two weapons specialists in the department who dealt with
firearms brought into the station as evidence or as confiscated
personal items.

       Gerald Smith was a local constable for McKees Rocks
and adjacent municipalities. He was also an informant for the
Federal Bureau of Investigation (“FBI”) who was cooperating
in investigations into public corruption in the municipalities in


   1
    Several weeks after his first arrest, Suchoza was arrested
again for public intoxication, booked, fined and released. He
neither asked for nor was given his rifle upon his second release
from custody.
                               3
which he worked. Smith testified that he was “good friends”
with McBane, and that the two both worked security at bingo
events held at a local booster club. One night during the
summer of 2001, while the two were working together, McBane
showed Smith Suchoza’s rifle. Smith testified that when asked
by Smith where he got it, McBane referred to Suchoza, then
“[h]e said, well, this [rifle] was his. He said, we didn’t give it
back. I said, what are you going to do with it. He said, I am
going to sell it.” McBane then sold the rifle to Smith for $80.
Smith notified the FBI that he had purchased the rifle from
McBane, and the FBI initiated an investigation.

       At the time Smith informed the FBI about the rifle,
federal agents had already received information from a
dispatcher at the McKees Rocks Police Department that
McBane had sold the rifle. The FBI received the information
from both sources in June of 2002. Thereafter, McBane
attempted to cover-up his removal and sale of the rifle and
another gun, a .22 caliber handgun.2 He told Smith that the FBI
was asking questions about the guns and that he needed to get
them back and return them to his office at the department.

    2
      The second gun was the subject of Count Two of the
indictment (see infra, this section). The second gun was turned
over to McBane by the former owner. McBane sold the
handgun to Smith for $50 approximately one month after he had
sold Smith the rifle. The jury acquitted McBane of the knowing
theft and sale of the second gun, but the false denial at issue in
this appeal relates to both guns.
                                4
Smith agreed to give the guns back to McBane, but first, and
without McBane’s knowledge, Smith gave them to FBI Special
Agents who photographed them as part of the investigation. The
agents then arranged to electronically surveil Smith returning
the guns to McBane. In the meantime, McBane reimbursed
Smith for the price of the guns.

        On August 26, 2002, Smith met McBane and returned the
guns to him while wearing a recording device and under
surveillance by the FBI. During that encounter, McBane made
the comment to Smith that he could now let the FBI come into
his office and see the guns.

        On September 9, 2002, the same two FBI Special Agents
who had been dealing with Smith went to McBane’s house and
asked him a series of questions focused on the guns McBane had
sold to Smith. McBane told the Agents that the guns had never
been sold and had remained in the physical custody of the
department. McBane further stated that the guns were stored in
his office and that he could show them to the Agents. Later that
day, McBane showed the Agents the guns in his office at the
department. That evening, in another recorded conversation
with Smith, McBane told Smith that he had spoken to the
Agents and “told them that [the guns] had never left . . . his
office.” McBane eventually admitted selling both guns to Smith
and orchestrating the return of the guns to the office. He also
admitted to lying to the Agents about the sale of the guns.

       McBane claims that he first became aware of the rifle in
                               5
late summer 1999 and that, weeks later, he removed it from the
“filing cabinet” on which it was sitting and put it in his office.
He also contends that he asked several individuals about the
rifle’s origins but got no knowledgeable response and that,
sometime later, he ran a computer check on the rifle to
determine if it had been stolen and found that the rifle was not
in the system. McBane kept the rifle in his office for two years
and removed it in the summer of 2001 in order to sell it to
Smith.

       McBane was charged in a three-count indictment
returned on September 10, 2003. Counts One and Two charged
McBane with selling stolen firearms in violation of 18 U.S.C. §§
922(j)3 and 924(a)(2),4 and Count Three charged him with

  3
   18 U.S.C. § 922(j) provides in relevant part:

       It shall be unlawful for any person to receive,
       possess, conceal, store, barter, sell, or dispose of
       any stolen firearm . . . which is moving as, which
       is a part of, which constitutes, or which has been
       shipped or transported in, interstate or foreign
       commerce, either before or after it was stolen,
       knowing or having reasonable cause to believe
       that the firearm . . . was stolen.
  4
    Section 924(a)(2) is the penalties provision for § 922(j). It
provides in relevant part that “[w]hoever knowingly violates
subsection . . . (j) . . . of section 922 shall be fined as provided
in this title, imprisoned not more than 10 years, or both.”
                                 6
making a materially false statement in violation of 18 U.S.C. §
1001(a)(2).5 A superseding indictment was filed on March 24,
2004. McBane pled not guilty, and a jury trial ensued which
lasted from April 12 to April 16, 2004.6 A jury convicted
McBane on Count One for selling the rifle to Smith and on
Count Three for making the materially false statements to the
FBI. He was acquitted of selling the handgun.

       The District Court denied McBane’s post-verdict motion
for judgment of acquittal on April 27, 2004. On July 30, 2004,
under the pre-Booker, mandatory regime of the United States
Sentencing Guidelines (hereinafter “Guidelines”), McBane was
sentenced to 21 months for each count, to run concurrently,
followed by two years of supervised release. McBane’s offense
level under the Guidelines included enhancements for his role


  5
   18 U.S.C. § 1001(a)(2) provides in relevant part:

      [W]hoever, in any matter within the jurisdiction
      of the executive, legislative, or judicial branch of
      the Government of the United States, knowingly
      and willfully . . . makes any materially false,
      fictitious, or fraudulent statement or
      representation . . . shall be fined under this title,
      imprisoned not more than 5 years . . . or both.
  6
    The District Court had original jurisdiction over McBane’s
criminal trial under 18 U.S.C. § 3231. We exercise appellate
jurisdiction under 28 U.S.C. § 1291.
                               7
in the offense and for the fact that the rifle was stolen.7 McBane
filed a timely appeal challenging the judgments of conviction
and his sentence.

                               II.

       As to his convictions, McBane challenges the jury’s
verdicts as “not supported by the evidence.” Thus, his appeal
requires us to decide two issues: (1) whether the jury’s verdict
that McBane knowingly sold a stolen rifle is supported by
substantial evidence, and (2) whether the jury’s verdict that
McBane’s false statements to FBI Special Agents were
“material” under § 1001 is supported by substantial evidence.
Where a petitioner “challenges the sufficiency of the evidence
against him” as to particular charges and “believes that the
District Court erred as a matter of law in allowing the[] verdicts
to stand,” we “must sustain the verdict[s] if there is substantial
evidence, viewed in the light most favorable to the government,
to uphold the jury’s decision.” United States v. Beckett, 

, 151 (3d Cir. 2000). We do not “weigh evidence or


  7
   As is commonly known by now, the Booker decision severed
and excised two sections of the Federal Sentencing Act, the
effect of which was to render the Guidelines advisory rather
than mandatory. As we discuss below, our disposition of
McBane’s resentencing request is determined by the facts that
(1) McBane was sentenced before the Booker decision, and (2)
he received a sentence enhancement from the District Court
under the mandatory regime.
                                8
determine the credibility of witnesses in making this
determination.” 

“must credit all available
inferences in favor of the government” in making our
determination. United States v. Riddick, 

, 509 (3d
Cir. 1998).

                                A.

       We first address the jury’s finding that McBane
knowingly sold a stolen rifle to Gerald Smith in violation of §
922(j). Most of McBane’s argument on this point fails to attack
the sufficiency of the Government’s evidence as such. Instead,
McBane merely rehashes trial evidence which he views as
favorable to him. Specifically, McBane cites evidence he
presented at trial indicating that: (1) the rifle was legitimately
seized originally; (2) its owner did not request its return; (3)
there are no written procedures in McBane’s department for
disposal of seized property that is not evidence; (4) McBane
subjectively knew neither when his ownership of the rifle
“occurred” nor the law of abandoned property. Based on these
aspects of his case at trial, McBane asserts that the Government
presented insufficient evidence that the rifle was stolen or that
McBane knew or should have known it was stolen.

      The evidence McBane presents, however, does little to
undermine the Government’s case. The assertions that the rifle
was properly confiscated originally and that Suchoza never
asked for its return do not help McBane. McBane was not
involved in the rifle’s lawful confiscation, and, at all events, the
                                 9
issue is whether the rifle was unlawfully kept from Suchoza – or
taken from the police department – after it was lawfully
confiscated. McBane never sought to return the rifle to
Suchoza. He sold the rifle for profit without Suchoza’s
knowledge or consent, without registering the gun in his own
name, and without obtaining the consent of the police
department to sell it.8

      Similarly, McBane’s defense that he lacked subjective
knowledge that the rifle was stolen fails even to address the
language in 18 U.S.C. § 922(j) indicating that McBane is liable



  8
    We note that, even if we were to concede that Suchoza had
legally abandoned his rifle by the time McBane sold it, such a
concession would not help McBane under the law of theft in
Pennsylvania. Irrespective of Suchoza’s abandonment, the
police department had a possessory interest in the rifle superior
to McBane’s. Under Pennsylvania law, theft of movable
property is defined as an unlawful taking of “movable property
of another.” 18 Pa. C.S. § 3921. “[P]roperty of another”
“[i]ncludes property in which any person other than the actor
has an interest which the actor is not privileged to infringe . . .
.” 18 Pa. C.S. § 3901. Thus, even if Suchoza did abandon the
rifle, McBane stole the rifle because he deprived the police
department of a superior possessory interest. Analogously,
taking property from a bailee is deemed sufficient evidence of
theft even though the bailee is not the actual owner. See
Commonwealth. v. Harrison, 

, 1087 (Pa. Super.
1981).
                               10
if he “ha[d] reasonable cause to believe” the rifle was stolen.9
His assertion that he did not subjectively know it was stolen
begs the question of whether he should have known.

        For its part, the Government presented extensive
evidence at trial to support the § 922(j) charge. As to the theft
of the rifle, the Government offered, inter alia, McBane’s own
words (from Gerald Smith’s testimony at trial):


  9
   We have not addressed the meaning of “reasonable cause to
believe” in the context of § 922(j) or a similar statute. Only the
Eighth Circuit has discussed the language meaningfully. See
United States v. Iron Eyes, 

, 785 (8th Cir. 2004).
In Iron Eyes, the Court indicated that the above phrase may be
read one of two ways:

       It may be read as requiring proof only that the
       defendant [sold] a gun that the so-called
       “reasonable person” would have believed was
       stolen in the circumstances of the case. But the
       better reading, we believe, requires proof that a
       defendant [sold] a gun that it would have been
       reasonable for him or her, in particular, to believe
       was stolen.

omitted). Because this case requires us to
evaluate the evidence in the record in the light most favorable to
the Government, we conclude that McBane would lose under
either reading of the statute.
                               11
      Smith: [W]here did you [get the rifle]?

      McBane: [Y]ou remember [Suchoza]?

      Smith: [Y]eah.

      McBane: [W]ell, this was his. . . . [W]e didn’t give it
      back.

      Smith: [W]hat are you going to do with it?

      McBane: I am going to sell it.

Based on this exchange, a jury could reasonably infer that the
rifle did not rightfully belong to McBane, that McBane knew as
much, and that he intended to sell the rifle anyway. The record
clearly establishes that McBane sold the rifle. As we have
indicated, our standard of review precludes us from assessing
the credibility of Smith’s testimony. The above evidence alone,
taken in the light most favorable to the Government, might well
be enough to sustain the jury’s verdict as to McBane’s knowing
sale of a stolen rifle.

       The trial record, however, provides additional evidence
that supports the jury’s verdict. The McKees Rocks Public




                              12
Safety Director10 testified that McBane did not take the only
lawful step he could have taken to register the gun in his name
– to make it his property – namely, getting a court order to that
effect. The Director further testified that McBane knew he
should have taken that step. The Government also produced
evidence indicating that McBane had received training in the
lawful transfer of firearms and in the proper confiscation and
logging of evidence. McBane himself testified that he was
familiar with the policies operative in the department for dealing
with confiscated property. Finally, the Director testified that, in
spite of his knowledge of proper procedure, McBane proceeded
to sell Suchoza’s rifle to Smith without the consent of the
Director or Suchoza himself, indeed without attempting to get
the consent of either.11 All of the above evidence is probative of
the finding that McBane knowingly stole the rifle and sold it.


  10
   The Public Safety Director is the chief of the McKees Rocks
Police Department. He is hereinafter referred to as the
“Director.”
   11
    It is worth noting that, despite the above concessions, the
Director testified that he did not personally believe that McBane
had stolen the rifle. The Director indicated that he viewed
McBane’s conduct regarding the rifle, essentially, as an
administrative error. He testified further that, had McBane
sought consent to sell the rifle, it would have been granted.
Nonetheless, the jury disagreed with the Director on this point
and properly concluded that McBane’s conduct did indeed
constitute theft.
                               13
         Applying the relevant language from § 922(j), and
evaluating the evidence in the light most favorable to the
Government, Smith’s testimony – combined with the testimony
of the Director and the admissions and testimony of McBane
himself – quite reasonably could be construed as proof that
McBane sold a stolen rifle that he knew or should have known
was stolen. We hold that substantial evidence supports the
jury’s verdict that McBane sold a stolen rifle to Gerald Smith in
violation of 18 U.S.C. § 922(j).




                                B.

       We now turn to the jury’s finding that McBane’s false
statements to the FBI Special Agents were material. The
Supreme Court articulated the definition of “materiality” under
18 U.S.C. § 1001 in United States v. Gaudin, 

, 512
(1995): To be “material,” “[t]he statement must have a natural
tendency to influence, or [be] capable of influencing, the
decisionmaking body to which it is addressed.”              We
acknowledged and applied that precise language in United
States v. McLaughlin, 

, 553 (3d Cir. 2004).12 Thus,

  12
     In McLaughlin, we dealt with the materiality provision not
of § 1001, but of 29 U.S.C. § 439(b) (false statements of
material fact or failure to disclose a material fact in the context
of reporting requirements for labor organizations). 

. That said, analysis of the two materiality
                                14
the language of the standard for materiality is well settled. It is
also clear that a statement may be material even if no agency
actually relied on the statement in making a decision. See, e.g.,
In re Cohn, 

, 1114 (3d Cir. 1995). Equally clear is
that a statement is material if it is capable of influencing a
particular decision of the agency in question. See 

. The dispositive question on this issue is
whether the test for “materiality” necessarily requires that a false
statement be capable of influencing an actual, particular
decision of the agency at issue, or whether the test requires only
that a statement be of a type that would naturally tend to
influence a reasonable decisionmaking agency in the abstract.

       McBane argues that because the FBI’s investigation was
essentially complete when the Agents spoke to McBane about
the guns, his false statements added nothing. As such, the
statements were not “material” because they were not capable
of influencing the particular decisions or actions taken by the
FBI Agents in this case. The Government concedes that
McBane’s false statements did not influence and were not
capable of influencing the decisions or actions of the particular
Agents to whom McBane made those statements. The
Government counters, however, that McBane’s false statements



provisions is identical, and we treated the two as
interchangeable. See 

(quoting the Sixth Circuit’s
interpretation of § 1001 to reinforce our interpretation of §
439(b)).
                                15
were still material because they were of a type that would
naturally tend to influence a reasonable decisionmaker.

        Though we acknowledge that a false statement that
actually affects or is capable of affecting a specific decision by
an agency makes for an easier materiality determination, we
agree with the Government that both the language of the
materiality standard and the decisions applying that standard
require only that the false statement at issue be of a type capable
of influencing a reasonable decisionmaker. The language of the
materiality standard indicates that a statement is material if it has
“a natural tendency to influence, or is capable of influencing,
the decisionmaking body to which it is addressed.” 

(emphasis added). In our view, the phrase “natural
tendency” connotes qualities of the statement in question that
transcend the immediate circumstances in which it is offered and
inhere in the statement itself.

       Supreme Court precedent supports this interpretation of
the materiality language. United States v. Kungys, 

(1988), provides the clearest interpretation of the standard for
materiality at the Supreme Court level. Specifically interpreting
the phrase “natural tendency to influence,” Justice Scalia’s
opinion for the Court stated that, rather than letting the “infinite
variety of factual patterns that may emerge” around a statement
drive the materiality question, the “safer” method is “to fix as
our guide the central object of the inquiry: whether the
misrepresentation or concealment was predictably capable of
affecting, i.e., had a natural tendency to affect, the official
                                16
decision.” 

(emphasis added). In other words, the
Court judged the relevant inquiry to be whether the falsehood
was of a type that one would normally predict would influence
the given decisionmaking body.

       Brogan v. United States, 

(1988), provides
further support for the view that materiality does not turn on
whether the FBI believed McBane’s statements or whether they
influenced the investigation. Interpreting an earlier version of
18 U.S.C. § 1001, the Supreme Court stated:




       It could be argued, perhaps, that a disbelieved
       falsehood does not pervert an investigation. But
       making the existence of this crime turn upon the
       credulousness of the federal investigator (or the
       persuasiveness of the liar) would be exceedingly
       strange; such a defense to the analogous crime of
       perjury is certainly unheard of.

(emphasis in original). The Court continued that the
possibility of “perversion of function . . . exists whenever
investigators are told a falsehood relevant to their task.” 

(emphasis added).

      Additionally, our own decisions have affirmed the
Government’s position on materiality, albeit not in the § 1001
context. In In re Cohn, we cited Kungys for the proposition,
                               17
regarding “materially false” disclosures in the bankruptcy
context, that “a statement can still be material if it is so
substantial that a reasonable person would have relied upon it,
even if the creditor did not in fact rely upon it in the case at
hand.” In re 

(first emphasis added).
Similarly, in McLaughlin, after citing In re Cohn for the
proposition that actual reliance on the statement is unnecessary
to establish materiality, we stated that “the relevant inquiry is
whether the false information is of the type that is capable of
influencing a decision by an agency . . . .” 

(emphasis added) (internal quotation marks
omitted).

       Other courts of appeals that have had occasion to
interpret the materiality standard have reached the same
conclusion. Most clearly, the Ninth Circuit, citing and
discussing the above language from Kungys in United States v.
Service Deli, Inc., 

(9th Cir. 1998), indicated that
the “test [for materiality] is the intrinsic capabilities of the
statement itself, rather than the possibility of the actual
attainment of its end as measured by collateral circumstances.”

(emphasis in original) (internal quotation marks
omitted).

       Similarly, in United States v. Edgar, 

(1st Cir.
1996), the First Circuit applied an objective materiality test in a
case with important factual similarities to the instant appeal:

       A statement is material if it has a natural tendency
                                18
       to influence or is capable of influencing a
       government function. . . . Edgar argues that
       because the decision not to grant him [federal
       workers’ compensation] benefits had already
       been made and because his forms were filed late,
       his failure to set forth his self-employment was
       not material. However, the standard is not
       whether there was actual influence, but whether
       [the statement or omission] would have a
       tendency to influence. The district director of the
       OWCP testified that on a claim for disability,
       whether one may work or has worked has
       considerable influence on the amount of benefits
       warranted. Thus, the district court did not err in
       finding Edgar’s false statements to be material.

(emphasis added).

       We conclude that McBane’s false denial of moving or
selling the guns involved statements that would normally be
capable of influencing a criminal investigation. McBane not
only denied stealing or selling the guns himself, but said that the
guns had never been out of police custody, i.e., that no one had
ever stolen or sold them. He also volunteered to show the guns
to the agents, which he subsequently did.                    Such
misrepresentations, under normal circumstances, could cause
FBI agents to re-direct their investigation to another suspect,
question their informant differently or more fully, or perhaps
close the investigation altogether. In fact, as the Government

                                19
argues, McBane’s own testimony indicated that he hoped and
expected that his false statements would have precisely those
effects. McBane testified that he lied to the Agents so that the
investigation would turn “to other people, whether within my
department or elsewhere. . . . They would leave me alone.”

       We hold that substantial evidence supports the jury’s
finding that McBane’s false statements to the FBI were material.




                              III.

       Finally, we must decide whether McBane’s case should
be remanded for resentencing pursuant to the Supreme Court’s
decision in United States v. Booker. We conclude that
McBane’s case should be remanded.13

       In United States v. Davis, 

, 165 (3d Cir.
2005), we announced our intention to remand for resentencing


  13
    McBane originally raised, and the parties briefed, the issue
of McBane’s entitlement to a sentencing reduction under the
Guidelines for acceptance of responsibility. We subsequently
ordered the parties to address whether remand for resentencing
under Booker was appropriate. Because we will remand the
case for post-Booker resentencing, we need not evaluate the
District Court’s finding that an “acceptance of responsibility”
sentence reduction was not warranted.
                              20
those cases in which sentence was imposed under the pre-
Booker mandatory guidelines regime, was enhanced pursuant to
judge-found facts (other than the existence of prior convictions),
and was challenged on direct appeal:

         Furthermore, as noted by the Court of Appeals for
         the Sixth Circuit, “[w]e would be usurping the
         discretionary power granted to the district courts
         by Booker if we were to assume that the district
         court would have given [defendant] the same
         sentence post-Booker.” Failure to remand for
         resentencing, therefore, could adversely affect the
         fairness and integrity of the proceedings.
         Accordingly, defendants sentenced under the
         previously mandatory regime whose sentences are
         being challenged on direct appeal may be able to
         demonstrate plain error and prejudice. We will
         remand such cases for resentencing.

As the above language from Davis suggests, in order
to qualify for resentencing under Booker, a defendant must
object to his sentence at sentencing and reassert his argument on
direct appeal. See U.S. v. Ordaz, 

, 239 (3d Cir.
2005).


      McBane preserved the issue of sentencing at both the trial
and sentencing stages, raised a challenge to his sentence on

                                 21
appeal, and raised the Booker issue before us by proper
supplemental letter-motion to the Court. The Government made
no response by supplemental letter or brief on the issue of a
remand under Booker. The District Court concluded that
McBane’s offense level under the Guidelines should include
enhancements of two points for his role in the offense and two
points if the rifle was stolen. McBane asserts that because the
former enhancement “was not charged as part of the
indictment,” i.e., the factual predicate for the enhancement was
found by the Court, not by the jury, it is subject to Booker
scrutiny and requires remand pursuant to our decision in Davis
regarding post-Booker cases. We agree.


                              IV.


       For the foregoing reasons, we will affirm the judgment
of conviction on both the stolen gun sale and false statement
charges under 18 U.S.C. §§ 922(j) and 1001, respectively.
We will vacate McBane’s sentence, and we will remand the
case for resentencing.