* The Honorable Judge George Caram Steeh, United States District Court Judge for the Eastern District of Michigan, sitting by designation. NOT RECOMMENDED FOR PUBLICATION File Name: 05a0856n.06 Filed: October 18, 2005 No. 04-6262

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ANDREW MCCUTCHEN, Defendant-Appellant. / ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

BEFORE: CLAY and GIBBONS, Circuit J udges and STEEH, District Judge

. * CLAY, Circuit Judge . Defendant appeals his conviction and sentence for being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922 (g). For the reasons set forth below,

we AFFIRM Defendant’s conviction; however, in lightof the Supreme Court’s recent opinion in United States v. Booker , 125 S.Ct. 738 (2005), we VACATE Defendant’s sentence and REMAND the case for resentencing in a manner consistent with this opinion.

I. BACKGROUNDNo. 04-6262

2 Procedural History On July 21, 2003, a grand jury sitting in the Western District of Tennessee returned an indictment against Defendant. The indictment ch arged Defendant with being a felon in possession of a firearm shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g). The case proceeded to trial. The district court deni ed Defendant’s motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29 at the close of the Prosecution’s case, but Defendant did not renew the motion at the close of all evid ence. The jury convicted Defendant on March 23, 2004. Defendant was sentenced to 115 months imprisonment, followed by 2 years supervised release. The district court entered final j udgment on October 14, 2004. Defendant timely filed a Notice of Appeal with this Court on the same day. Substantive Facts On December 6, 2001, five police officers execute d a search warrant at 2513 Spangler Drive in Humboldt, Tennessee. When the officers knocked on the door, Defendant answered and permitted them to enter. Defendant told Officer Danny Lewis that his sister and brother-in-law, Jerry and Angela Allen, were also present in th e house. After confirming that the Allens were indeed present, the officers searched the house. Officer Lewis asked Defendant where the “weed” was. Defendant took Lewis to a kitchen cabinet where he pulled out a bag of marijuana. In a cabinet above the refrigerator, about six toseven feet away from the cabinet in which the marijuana was found, the officer s found two loaded firearms – a nine millimeter Hi-Point and a .44-caliber Ruger Blackhawk Revolver. In th e Allens’ bedroom, the officers found a box of .44 caliber ammunition.No. 04-6262

3 The 2513 Spangler Drive residence was leased to the Allens. However, after being read his Miranda warnings and agreeing to give a statement to Lewis, Defendant listed the residence as his home address. Defendant told Lewis that he stayed at the residence “on and off” and admitted to having slept there the night before the search. Defe ndant also said he went to the residence “every day,” in part to assist his brother-in-law, whose left arm is paralyzed. Angela Allen testified that Defendant “was living with [her] at the time” butdid not have an assigned bedroom at the 2513 Spangler Drive residence. Jerry Allen testified th at Defendant slept on the couch in the living room. After the ammunition was discovered in the Allens’ bedroom, and for the apparent purpose of ensuring the officers’ safety, Lewis asked Jerry something to th e effect of “where are the guns?” Jerry denied knowing about any guns. Jerry wa s later charged by the state of Tennessee with marijuana possession. In subsequent state court pro ceedings held pursuant to that charge, Jerry told the judge that he owned the two firearms uncovered inthe search of his residence. Jerry also signed a notarized statement to this effect. At Defendant’s trial, Jerry again testified that he owned the firearms, that the ammunition found in his bedroom belonged to him, and that he put the firearms in the kitchen cabinet in which they were f ound because nobody in the house used that cabinet. Jerry further testified that the cabinet was so hi gh off the ground that someone would need to stand on a chair and reach up to open it. Jerry claimed that he obtained the guns when he and Defendant ran into a “peddler” on the street who was pawning a sweater that caught Jerry ’s eye. Jerry asked the peddler to follow him home so that he could get some money. In the meantime, according to Jerry, Defendant left. Jerry says that he bought the sweater, and when the pe ddler asked him about an abrasion on his face, heNo. 04-6262

4 explained that he had been “sucker-punched” a c ouple of days earlier. Th e peddler then went out to his truck and produced a bag that contained the two guns. Jerry testified that he bought the guns and immediately stored them in the upper kitchen cabinet. At trial the jury was read, in its entirety, a transcript of the recorded statement Defendant gave to the police at the station immediately followi ng his arrest. In the stat ement, Defendant gave responses that linked him to the purchase of th e two guns. When asked whether or not he knew anything about the Ruger Blackhawk .44 magnum, De fendant replied “yes.” When asked, “What did he know,” Defendant replied, “S ee, I got that – I bought that like – well, like I said, he – I got that for him.” When pressed further and as ked whether or not he bought the gun for Jerry, Defendant answered, “I got – I didn’t buy it at no store. I can’t buy no gun . . . . But you can go – but you can go to pawn – I mean the First Monday sale and just catch them out of town. I go to town, you know what I’m saying.” Defendant went on to state later that the gun was not his, but that he “put money into” buying it. The officer then proceeded to question Defendant about the Hi-Point 9 mm. When asked to whom the gun belonged, Defendant replied, “Now thatthere, I got that off a dude selling in the street.” When asked the follow up question, “You bought this guy off a dude in the street,” Defendant then tried to make a distinction between “bought” and “got,” insisting that “ I got it. Got it and bought it is a different thing.” At one point Defendant even responded, “Uh huh” when the officer asked him, “So this is your gun?” Defendant suggested th at the gun was for the protection of his paralyzed brother-in-law, Jerry.No. 04-6262

5 Prior to trial, the Defendant filed a motion inlimine seeking to prohibit the government from introducing any evidence of drug activity or other state law violations in the case-in-chief. Defense counsel argued that the marijuana found at the re sidence was not relevant, and should be excluded pursuant to Rule 404(b) of the Federal Rules of Evidence. The district court denied Defendant’s motion, finding that Defendant’s knowledge of wher e the marijuana was located was evidence that the Defendant had familiarity with the house, with th e kitchen, and with the contents of the cabinets. The judge instructed the jury during Officer Le wis’s testimony however, that the Defendant was not on trial for any controlled substance offense, and that they were not to consider the presence of drugs as relevant to the issue of the firearms. Defense counsel did not renew his objection to the testimony regarding the marijuana at trial, and Defendant’s statement was read to the jury in its entirety. Defendant unsuccessfully moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, at the close of the governme nt’s case-in-chief, but did not renew the motion at the close of all evidence. The jury convicted Defendant, and Defendant was sentenced to 115 months’ imprisonment, in part due to a 4-level enhancement imposed by the district court. The judge also sentenced Defendant to two years supervised release.

II. DISCUSSION Defendant raises several issues on appeal. First, Defendant challenges his conviction, alleging the government failed to prove beyond a reasonable doubt that he possessed a firearm on or about December 6, 2001. Defendant secondly contends that he was prejudiced by the admissionNo. 04-6262

6 into evidence of testimony related to his having vol untarily gone to the kitchen cabinet and located and removed a bag of marijuana. Finally, Defendant argues that the district court improperly sentenced him under what the court perceived as mandatory provision of the U.S. Sentencing Commission Guidelines. We address each of these arguments in turn. A

. Sufficiency of the Evidence 1. Standard of Review This Court’s review is only for “manifest in justice” because Defendant failed to renew his motion for a judgment of acquittal at the close of the evidence under Federal Rule of Criminal Procedure 29. United States v. Frederick , 406 F.3d 754, 765 (6th Cir. 2005); United States v. Wagner , 382 F.3d 598, 611, n.2 (6th Cir. 2004); United States v. Kolley , 330 F.3d 753, 756 (6th Cir. 2003); United States v. Price , 134 F.3d 340, 350 (6th Cir. 1998); United States v. Morrow , 977 F.2d 222, 230 (6th Cir. 1992) ( en banc ). Accordingly, this Court may re verse the conviction “only if the record is devoid of evidence pointing to guilt.” Price , 134 F.3d at 350; United States v. McBride , 362 F.3d 360, 369 (6th Cir. 2004); United States v. Carnes , 309 F.3d 950, 956 (6th Cir. 2002). 2. Analysis This Circuit’s seminal decision regarding proof of possession remains United States v. Craven , 478 F.2d 1329 (6th Cir. 1973), where we stated: Possession may be either actual or construc tive and it need not be exclusive but may be joint. Actual possession exists whena tangible object is in the immediate possession or control of the party. Cons tructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others. Both actual possession and constructive possession may be proved by direct or circumstantial evidence. It is not necessary that such evidence remove every reasonable hypothesis except that of guilt.No. 04-6262

7 Id . at 1333 (citations omitted). In Craven , we held that constructive possession of the multiple firearms discovered throughout the house was established where the defendant had constructive possession of the house and one of the rooms in which a firearm was discovered and made statements that he collected guns. Id. at 1333-34. In addition, as this Court very recently reite rated, “[t]he government may prove constructive possession by presenting evidence that the person has dominion over the premises where the firearm was located.” United States v. Arnold , 410 F.3d 895, 904 (6th Cir. 2005) (citing United States v. Kincaide , 145 F.3d 771, 782 (6th Cir. 1998)) (noting that there was evidence that the defendant and another person used the apartment in which the gun was found to process heroin and stash cocaine); see also United States v. Clemis , 11 F.3d 597, 601 (6th Cir. 1993) ( per curiam ); United States v. Snyder , 913 F.2d 300, 304 (6th Cir. 1990). Applying these standards to the present case, the record contains ample evidence to support a finding that Defendant had constructive possession of the house and the firearms found inside the cabinet. See, e.g. , Price , 134 F.3d at 350. First, the evidence establishes that Defendant had dominion and control over the residence at 2513 Sp angler Drive. Defendant listed 2513 Spangler Drive as his home address, referred to the residence as “my house,” to the kitchen table as the place where “I sit,” and to the cabinet in which the fi rearms were found as “my cabinet.” Defendant also spoke of staying at the residence “off and on” and admitted he went to the residence “every day.” Furthermore, Angela Allen, Defendant’s sister, tes tified that he “was living with [her] at the time [of the search].” It is undisputed that he had stayed at the residence the night before the search occurred.No. 04-6262

8 Even more damaging, not only did Defendant have dominion and control over the residence, but Defendant’s own statements connected him tothe firearms. He admitted having obtained the Ruger “at a pawn shop” and the Hi -Point “off a dude selling in the street.” Defendant’s insistence that the firearms were for Jerry’s protection doe s not mean that Defendant did not have access to them or dominion and control over the area in which they were stored. Possession, as this Court said in Craven , “need not be exclusive and may be jo int.” 478 F.2d at 1333. Therefore we find Defendant’s argument that the record is devoid of evidence to be without merit. B. Admission of Testimony Regarding Defe ndant’s Retrieval of Marijuana From a Kitchen Cabinet 1. Standard of Review Defendant filed a motion in limine to exclude any evidence or testimony relating to “drug activity.” The district court denied the motion, and defense counsel failed to renew the objection during Lewis’s testimony about Defendant’s retrieval of the bag of marijuana. Accordingly, this Court “must apply a ‘plain error’ standard of review.” United States v. Kelly , 204 F.3d 652, 655 (6th Cir. 2000) (holding that motions in limine do not preserve evidentiary objections for appeal; a contemporaneous objection is required). As this Court recently articulated: “Under [the pl ain error] test, before an appellate court can correct an error not raised at trial, there must be (1 ) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)); see also , United States v. Cotton, 535 U.S. 625, 626 (2002). If we find that “all three conditions are met, [we] may then exercise [our] discretion to notice a forfeited error, but only if [ ] th e error seriously affect[s] the fairness, integrity, or public reputationNo. 04-6262

9 of judicial proceedings.” Johnson, 520 U.S. at 467 (quoting United States v. Young, 470 U.S. 1, 15 (1985)); Cotton, 535 U.S. at 631-32; United States v. Milan , 398 F.3d 445, 451 (6th Cir. 2005). “‘Plain error’ is defined as an egregious error, one that directly leads to a miscarriage of justice. The ‘plain error’ doctrine is to be us ed sparingly, only in exceptional circumstances and solely to avoid a miscarriage of justice. A re viewing court should apply the ‘plain error’ doctrine to reverse only if errors were so rank that they should have been apparent to the trial judge without objection, or that strike at f undamental fairness, honesty, or pub lic reputation of the trial.” United States v. Carney , 387 F.3d 436, 453 (6th Cir. 2004) (internal quotation marks and citations omitted). 2. Analysis The district court denied Defendant’s motion in limine on the ground that Defendant’s having retrieval of the bag of marijuana from one of the kitchen cabinets “was [ ] some evidence that the defendant has familiarity with that house, with that kitchen, and with the contents of the cabinets.” In the district court’s view, this evidence was relevant to a material issue in the case – constructive possession of the firearm – because the gun was f ound in another cabinet some six or seven feet away. As stated, when Lewis testified about Defe ndant’s retrieval of the marijuana and read the portions of Defendant’s statement, the defens e did not object. Moreover, the district judge instructed the jury as follows: If there’s testimony about drugs being found in the kitchen, or controlled substances, let me remind you that the defendant is not on trial for any sort of controlled substances offense. You won’t consider the presence or absence of controlled substances or drugs of any kind as being re levant on the issue of whether or not the defendant possessed a firearm . . . . So re member, the defendant’s not on trial for any controlled substances offense, and any testimony about that is not relevant on the issue of the firearm.No. 04-6262

10 Defendant contends that the admission of Lewi s’s testimony regarding the marijuana and the portion of Defendant’s statement regarding the same was erroneous under Federal Rule of Evidence 404(b), which permits the admission of “other acts” evidence if the other act occurred, evidence of it is probative to a material issue other than ch aracter, and if the evidence’s probative value is not substantially outweighed by its potential prejudicial effect. See United States v. Jenkins , 345 F.3d 928, 939 (6th Cir. 2003); United States v. Haywood , 280 F.3d 715, 720 (6th Cir. 2002). Other than to recite these requirements, Defendant does not present a discernable argument specifically as to how this evidence is in fact Rule 404(b) evidence. Defendant argues only th at the evidence of his retrieval of the marijuana was prejudicial and should have been excluded. The question, then, is whether the admission of Lewis’s and Defendant’s references to the retrieval of the marijuana rose to the level of plain error in light of Rule 404(b)’s requirements. There is no dispute that the other act – the marijuana retrieval – occurred, and there appears to be no dispute that evidence of it was probative of a material issue in the case. Evidence that Defendant knew that one of the kitchen cabinets contained marijuana is, at the very least, probative of knowledge, and absence of mistake or accident w ith respect to constructive possession of the guns found in a cabinet nearby. See Fed. R. Evid. 404(b). Indeed, evidence that Defendant had access to, and dominion and control over, one kitchen cabinet is probative on the issue of his access to, and dominion and control over, other cabinets; specifically, the one where the firearms were stored. Thus, we do not believe that the district court pl ainly erred in determining Defendant’s retrieval of the marijuana was probative of a material issue other than character.No. 04-6262

11 The final Rule 404(b) requirement is simply that Rule 403 must be satisfied, i.e., the probative value of Defendant’s retrieval of the ma rijuana must not be “substantially outweighed by its potential prejudicial effect.” Haywood , 280 F.3d at 720; see also United States v. Brown , 147 F.3d 477, 483 (6th Cir. 1998); Fed. R. Evid. 403. In conducting this inquiry, this Court remembers that Rule 403 is a rule of inclusion . Accordingly, we must view the evidence in the light most favorable to its proponent, the government, and maximize its probative value. United States v. Logan , 250 F.3d 350, 368 (6th Cir. 2001). Against this backdrop, the implicit conclusion that the probative value of this evidence was not substan tially outweighed by its potential prejudicial effect cannot be said to have been an error “so rank that [it] should have been apparent to the trial judge without objection.” Carney , 387 F.3d at 452. The central issue in the case was whether Defendant had constructive possession of a firearm. Two firearms were found in a cabinet six or seven feet away from the cabinet that Defendant willingly identified as containing marijuana. Therefore, the marijuana retrieval has significant probative value. In addition, the distri ct court provided the jury with a clear limiting instruction (quoted above) to the effect that the marijuana evidence was not relevant to Defendant’s guilt or innocence of the crime charged. Such inst ructions minimize any potential prejudicial effect a piece of other act evidence might cause. See United States v. Gaitan-Acevedo , 148 F.3d 577, 592 (6th Cir. 1998); United States v. Myers , 123 F.3d 350, 364 (6th Cir. 1997); United States v. Feinman , 930 F.2d 495, 499 (6th Cir. 1990). Give n the strong probative value of Defendant’s retrieval of the marijuana and the district court’s limiting instru ction, we find that admission of the evidence wasNo. 04-6262

12 not error, and was specifically not an error so rank as to offend the “fairness, integrity, or public reputation of judicial proceedings.” Milan , 398 F.3d at 451. C. Sentencing Guidelines 1. Standard of Review Anticipating the Supreme Court’s holding in Booker , Defendant objected to the 4-level enhancement at sentencing. Accordingly, this Court’s standard of review is de novo

. United States v. McDaniel , 398 F.3d 540, 546-47 (6th Cir. 2005); United States v. Hazelwood , 398 F.3d 792 (6th Cir. 2005). 2. Analysis Both parties agree that the case must be remanded for re-sentencing in connection with the imposition of a 4-level enhancement for possessing “any firearm or ammunition in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(5), b ecause the district court engaged in the sort of judicial fact-finding that we now know violates the Sixth Amendment. See Booker , 125 S. Ct. at 756; Milan , 398 F.3d at 450-51; United States v. Oliver , 397 F.3d 369, 377-78 (6th Cir. 2005). Indeed, the district court itself agreed that if the Supreme Court applied the rationale of Blakely v. Washington , 542 U.S. 296 (2004) to the Sentencing Guidelines, re-sentencing of Defendant would be required. In any event, our Barnett rule requires re-sentencing because the district court plainly erred in sentencing Defendant under the impression that the Guidelines were mandatory. United States v. Barnett , 398 F.3d 516, 527-29 (6th Cir. 2005); see also United States v. Hudson , 405 F.3d 425, 444 (6th Cir. 2005). As indicated, the government concedes that a remand for re-sentencing isNo. 04-6262

13 necessary, so there is no basis to rebut Barnett ’s presumption that the sentencing error affected Defendant’s substantial rights. See Barnett , 398 F.3d at 527-29. III. CONCLUSION For the reasons set forth above, we AFFIRM Defendant’s conviction under 18 U.S.C. § 922 (g), but VACATE Defendant’s sentence and REMAND this case for resentencing in a manner consistent with this opinion.