UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4787

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DOMINGO ROMERO MOLINA,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Harrisonburg. James C. Turk, Senior

District Judge. (CR-03-53)

Submitted: June 22, 2005 Decided: August 25, 2005

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Robert J. Harris, Strasburg, Virginia, for Appellant. John L.

Brownlee, United States Attorney, William F. Gould, Assistant

United States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Domingo Romero Molina appeals his jury convictions of

conspiracy to distribute and possess with intent to distribute 500

grams or more of methamphetamine and possession of a firearm in

furtherance of a drug trafficking crime and the resulting 248-month

sentence. Molina does not attack his conspiracy conviction on

appeal, but asserts the evidence was insufficient to support his

firearm conviction. He also asserts that his sentence is incorrect

under Blakely v. Washington, 542 U.S. 296 (2004). We affirm

Molina’s convictions but vacate and remand his sentence.

When an Appellant challenges the sufficiency of the

evidence at trial, we must sustain a jury’s verdict “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); United States v. Wills, 346 F.3d 476, 495 (4th Cir.

2003), cert. denied, 124 S. Ct. 2906 (2004). Substantial evidence

is defined as “that evidence which ‘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.

Newsome, 322 F.3d 328, 333 (4th Cir. 2003) (quoting United

States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996)). The court

reviews both direct and circumstantial evidence and permits “the

government the benefit of all reasonable inferences from the facts
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proven to those sought to be established.” United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). 

“[A]n appellate court’s reversal of a conviction on

grounds of insufficiency of evidence should be ‘confined to cases

where the prosecution’s failure is clear.’” United States v.

Jones, 735 F.2d 785, 791 (4th Cir. 1984) (quoting Burks v. United

States, 437 U.S. 1, 17 (1978)). Witness credibility is within the

sole province of the jury, and the court will not reassess the

credibility of testimony. United States v. Saunders, 886 F.2d 56,

60 (4th Cir. 1989).

Molina alleges that the evidence presented at trial to

support his conviction of possession of a firearm in relation to a

drug trafficking offense “was just too skimpy.” The evidence

supporting Molina’s firearm conviction came from testimony from

other participants in the conspiracy. The gist of this testimony

was that Molina accepted a firearm as compensation for a drug debt

owed him by Richard Lee Richie. Richie’s testimony was

corroborated by other witnesses. With the above standards in mind,

we find this evidence sufficient to support his firearm conviction

and affirm it. 

Molina next asserts his sentence is improper under

Blakely. Both he and the Government assert that his sentence

should be vacated and remanded. We agree. While we find no Sixth

Amendment error in his sentencing, we conclude that United States
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v. White, 405 F.3d 208, 223 (4th Cir. 2005), requires us to vacate

and remand Molina’s sentence because he has demonstrated “that he

suffered actual prejudice from being sentenced under a mandatory

guidelines regime.” After pronouncing Molina’s sentence, the court

stated:

Now, if the Guidelines were not applicable and the

court was imposing a sentence without considering the

Guidelines, the court would impose a sentence of one

hundred and twenty (120) months for count one and sixty

(60) months for the gun count, to run consecutively, for

a total of one hundred eighty (180) months, in addition

to what the court has had to impose under the Guidelines.

(JA 597). Thus, unlike the sentencing court in White, the district

court in this case made “statements at sentencing indicating that

it wished to sentence [Molina] below the guideline range but that

the guidelines prevented it from doing so.” White, 405 F.3d at

223-24. We therefore conclude that Molina has shown under White

that the treatment of the Sentencing Guidelines as mandatory

affected the district court’s determination of the sentence it

imposed. For that reason, we vacate Molina’s sentence and remand

for resentencing.

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