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United States v. Lewis, 05-4813 (2006)

Court: Court of Appeals for the Fourth Circuit Number: 05-4813 Visitors: 36
Filed: Jul. 18, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4813 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOSEPH B. LEWIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (CR-05-40) Submitted: June 22, 2006 Decided: July 18, 2006 Before MICHAEL, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles A. Gavin, BLACKBURN, CONTE, SCHILLIN
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                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4813



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOSEPH B. LEWIS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-05-40)


Submitted:   June 22, 2006                 Decided:   July 18, 2006


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles A. Gavin, BLACKBURN, CONTE, SCHILLING & CLICK, P.C.,
Richmond, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Alexandria, Virginia; Angela Mastandrea-Miller, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Joseph    Lewis    appeals       his    conviction    and   120-month

sentence for possession of a firearm by a convicted felon, 18

U.S.C.   §   922(g)(1).        On   appeal     Lewis   argues     that   there   was

insufficient evidence to sustain his conviction and that the

district court erred in applying a four-level enhancement pursuant

to U.S.S.G. § 2K2.1(b)(5) for possessing the firearm in connection

with another felony offense.              Finding no reversible error, we

affirm Lewis’s conviction and sentence.



                                        I.

             On September 1, 2004, federal agents executed a search

warrant for a residence leased to Michele Campbell at 2286 Afton

Avenue in Richmond, Virginia.                 The agents recovered more than

$5,000 cash, over 170 grams of crack cocaine, and assorted drug

packaging paraphernalia. Four firearms were also recovered, one of

which was a loaded .357 caliber revolver.                 On January 15, 2005,

Lewis was indicted on single count of possession of a firearm (the

revolver) by a convicted felon, 18 U.S.C. § 922(g)(1).

             Lewis was tried before a jury on April 19 and 20, 2005.

To   prove   that     Lewis    possessed       the   revolver,    the    government

presented evidence that Lewis’s fingerprint was found on the

firearm.     It also presented the testimony of Campbell, the lessee

of the residence at 2286 Afton Avenue.                 Campbell had previously


                                          2
pled guilty to drug charges arising from the September 1 search,

and, pursuant to her plea agreement, she testified to the following

facts:   Lewis became a regular visitor at 2286 Afton Avenue soon

after Campbell leased it in July 2004. A shooting occurred outside

the residence on August 14, 2004.        A few days later, Lewis showed

the .357 revolver, which he had just purchased, to Campbell in her

living room. In the latter half of August 2004 Campbell personally

observed Lewis in possession of the revolver on seven to eight

occasions.   She also knew the various places inside the residence

where Lewis stored the revolver and heard Lewis refer to the

revolver as his “baby.”       The last time she saw Lewis with the

revolver was two days before the September 1 search.          On that date

she observed him place the revolver in his waistband.                Campbell

also testified that crack was sold from the residence, which “was

like a grocery store, people in and out.”            J.A. 63.    On cross-

examination Campbell testified that she was incarcerated at the

time of Lewis’s trial; she abused crack and alcohol around the time

of the September 1 search; she had previously withheld information

from the agents in connection with the September 1 search; and she

had a prior larceny conviction for stealing baby formula.             At the

close of the government’s case, Lewis moved for a judgment of

acquittal,   but   the   district   court   denied   the   motion.      Lewis

presented no evidence, and the jury returned a guilty verdict.




                                     3
           The pre-sentence investigation report (PSR) calculated

Lewis’s base offense level at twenty.         It also recommended a four-

level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) for possessing

the   firearm   in   connection   with    another   felony   offense.   The

recommended guideline range was 100 to 125 months.           Lewis objected

to the PSR’s four-level enhancement recommendation on the basis

that the evidence did not show he possessed the revolver in

connection with drug sales.         At Lewis’s sentencing hearing the

government presented testimony from one of the agents who executed

the search warrant and later interviewed Campbell.               The agent

testified that Campbell had told him that Lewis sold drugs from

Campbell’s residence.      Campbell did not, however, tell the agent

that Lewis had sold drugs between mid-August and September 1, 2004,

while he possessed the revolver.          She only generally stated that

she saw Lewis selling drugs from the residence between July and

September.      The district court found that Lewis possessed the

revolver in connection with drug trafficking and therefore applied

the recommended four-level enhancement. Lewis was sentenced to 120

months in prison, the statutory maximum sentence for a § 922(g)(1)

conviction.     This appeal followed.



                                    II.

           Lewis argues on appeal that his conviction cannot be

sustained because there was insufficient evidence at trial to show


                                     4
that he possessed the revolver.           In reviewing the sufficiency of

the evidence to support a conviction, the relevant question is

whether “any rational trier of fact could have found the defendant

guilty beyond a reasonable doubt.”         United States v. Saunders, 
886 F.2d 56
, 60 (4th Cir. 1989).         We consider “the evidence in the

light most favorable to the government, assuming the jury weighed

all of the evidence, resolved all conflicts in the testimony, and

drew all reasonable inferences from the facts.”            United States v.

Wilson, 
115 F.3d 1185
, 1190 (4th Cir. 1997).             Accordingly, we do

not review the credibility of witnesses.         
Id. In the present
case,

we assume, as we must, that the jury credited Campbell’s testimony

about   Lewis’s   possession   of    the    revolver.      In   addition    to

Campbell’s testimony, the jury also heard evidence that Lewis’s

fingerprint was found on the firearm.              On the basis of this

evidence, a rational juror could have found beyond a reasonable

doubt   that   Lewis   possessed    the    revolver.     The    evidence   was

therefore sufficient to sustain Lewis’s § 922(g)(1) conviction.



                                    III.

           Lewis also argues that the district court erred in

applying the § 2K2.1(b)(5) four-level enhancement because there is

no evidence connecting the firearm to any drug sales.              Under the

now-advisory U.S. Sentencing Guidelines, courts must calculate the

applicable guideline range, making all necessary findings of fact


                                     5
by a preponderance of evidence, before imposing a sentence.     See

United States v. Hughes, 
401 F.3d 540
, 546 (4th Cir. 2005).          A

district court’s factual finding at sentencing will not be set

aside unless it is clearly erroneous. United States v. Sayles, 
296 F.3d 219
, 224 (4th Cir. 2002).   In this case, the following facts

tend to show that Lewis possessed the revolver in connection with

drug trafficking:    Campbell testified that Lewis possessed the

revolver between mid-August and September 1, 2004; Campbell told

agents that Lewis sold drugs from the house between July 2004 and

September 2004; the revolver was found in the house where drug

trafficking took place; the revolver was found during a search that

also turned up more than 170 grams of crack and assorted drug

packaging paraphernalia; and Lewis was present at the house when

agents arrived to conduct the search.   On the basis of these facts,

the district court reasonably could have found that Lewis was

dealing drugs during the time that he was in possession of the

firearm.   The district court’s finding to that effect was not

clearly erroneous.

                                 ***

           For the foregoing reasons we affirm Lewis’s conviction

and sentence. 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


                                  6

Source:  CourtListener

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