UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4651

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDWARD C. LEGGETT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Newport News. Jerome B. Friedman,

District Judge. (CR-03-138)

Submitted: March 30, 2005 Decided: May 9, 2005

Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Frank W. Dunham, Jr., Federal Public Defender, Larry M. Dash,

Assistant Federal Public Defender, Meghan S. Skelton, Research and

Writing Attorney, Norfolk, Virginia, for Appellant. Paul J.

McNulty, United States Attorney, Michael J. Elston, Lisa R. McKeel,

Assistant United States Attorneys, Newport News, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Edward C. Leggett was convicted of possession of a

firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2000),

and possession with intent to distribute cocaine base, in violation

of 21 U.S.C. § 841(a)(1) (2000). He was sentenced to concurrent

terms of imprisonment of 120 months and 165 months, respectively,

to be followed by concurrent three-year and eight-year periods of

supervised release. Leggett appeals his convictions and sentence.

Leggett contends there was insufficient evidence to

support his convictions. We review the district court’s decision

to deny a motion for judgment of acquittal de novo. United

States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If the

motion was based on insufficiency of the evidence, the verdict 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). “[S]ubstantial evidence is

evidence that a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc). 

To prove a violation of 18 U.S.C. § 922(g) (2000), the

government must show that: “(1) the defendant previously had been

convicted of a crime punishable by a term of imprisonment exceeding

one year; (2) the defendant knowingly possessed . . . the firearm;
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and (3) the possession was in or affecting commerce, because the

firearm had traveled in interstate or foreign commerce.” United

States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).

Because Leggett stipulated that he was a convicted felon and that

the firearm had traveled in interstate commerce, the government

only needed to prove Leggett knowingly possessed the firearm.

To convict Leggett of possession with the intent to

distribute cocaine base, the government had to prove that Leggett:

(1) knowingly, (2) possessed the cocaine, (3) with the intent to

distribute it. Burgos, 94 F.3d at 873. Intent to distribute can

be inferred if the amount of drugs found exceeds an amount

associated with personal consumption. See United States v. Wright,

991 F.2d 1182, 1187 (4th Cir. 1993).

As to both charges, possession may be actual or

constructive. United States v. Rusher, 966 F.2d 868, 878 (4th Cir.

1992). Constructive possession exists when the defendant

exercised, or had the power to exercise, dominion and control over

the item. United States v. Jackson, 124 F.3d 607, 610 (4th Cir.

1997) (quotations omitted); United States v. Schocket, 753 F.2d

336, 340 (4th Cir. 1985). Possession may be established by direct

or circumstantial evidence. Schocket, 753 F.2d at 340.

When the evidence is viewed in the light most favorable

to the government, we conclude there was sufficient evidence from

which a jury could reasonably infer Leggett constructively
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possessed the firearm on July 22, 2003, and the cocaine base on

November 17, 2003. Accordingly, we affirm Leggett’s convictions.

Leggett also appeals his sentence, arguing that

Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the

sentencing guidelines. Leggett preserved this issue for appeal by

raising it in the district court. In United States v. Booker, 125

S. Ct. 738 (2005), the Supreme Court held that Blakely applies to

the federal sentencing guidelines and that the guidelines are

advisory rather than mandatory. In light of the Court’s decision

in Booker, we vacate Leggett’s sentence and remand the case for

resentencing. 

In sum, we find no reversible error with the convictions,

but we vacate Leggett’s sentence and remand for resentencing in

accordance with Booker. We also deny Leggett’s motion to remove

counsel and proceed on appeal pro se. 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