UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5019

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRIAN DOUGLAS CALDWELL,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. John T. Copenhaver, Jr.,

District Judge. (CR-04-80)

Submitted: May 3, 2006 Decided: May 25, 2006

Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Timothy Jon LaFon, CICCARELLO & DEL GIDUICE, Charleston, West

Virginia, for Appellant. Charles T. Miller, Acting United States

Attorney, Joshua C. Hanks, Assistant United States Attorney,

Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Brian Douglas Caldwell pled guilty pursuant to a written

plea agreement to one count of possession of a firearm by an

adjudicated mental defective and one count of providing false

information, in violation of 18 U.S.C. §§ 922(g)(4); 924(a)(1)(A),

(a)(2) (2000). He was sentenced to a total term of imprisonment of

seventy-eight months. On appeal, Caldwell contends that the

district court erred in its application of the Sentencing

Guidelines. We affirm.

After United States v. Booker, 543 U.S. 220 (2005), a

sentencing court is no longer bound by the range prescribed by the

Sentencing Guidelines. See United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005). However, in determining a sentence

post-Booker, sentencing courts are still required to calculate and

consider the guideline range prescribed thereby as well as the

factors set forth in 18 U.S.C. § 3553(a) (2000). Id. We will

affirm a post-Booker sentence if it is both reasonable and within

the statutorily prescribed range. Id. at 546-47; see also United

States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (stating a

sentence imposed within a properly calculated guideline range is

presumptively reasonable), cert. denied, __ U.S. __, 2006 WL

1057741 (U.S. May 22, 2006) (No. 05-10474). When reviewing the

district court’s application of the Sentencing Guidelines, we

review findings of fact for clear error and questions of law de
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novo. Green, 436 F.3d at 456. A sentence is unreasonable if based

on an error in construing or applying the Sentencing Guidelines.

Id. at 456-57.

Caldwell first argues that the Government failed to

establish by a preponderance of the evidence that he used a firearm

in the commission of another felony offense. Specifically,

Caldwell argues that the testimony did not place him at the scene

of the crime during its commission. He reasons that his admission

that he was a gun enthusiast explained why his shell casings were

found at the crime scene. However, a Government witness testified

that she saw a man in a dark colored truck fire a weapon from

inside his vehicle. The unidentified individual fired the weapon

not only at the witness’s truck, but also in her direction. The

witness immediately brought law enforcement officers back to the

crime scene, resulting in the discovery of shell casings. These

casings were described as “fresh” by the witness because they were

not rusty or dirty.

Further, a trace evidence expert testified that gunshot

residue was found in the interior of Caldwell’s truck.

Specifically, residue was found on the driver’s side door, the

headliner above the driver’s side door, and the steering wheel.

Additionally, a ballistics expert testified that the markings on

the shell casings recovered from the crime scene matched those test

fired from Caldwell’s weapon. Based on these facts, we conclude
*Caldwell also challenges the evidence presented in relation

to another felony offense alleged by the Government. However, we

need not address this evidence as the truck shooting supports the

enhancement.

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the district court did not clearly err in finding Caldwell used the

firearm in the commission of another felony offense.*

 

Next, Caldwell contends the district court erred in

determining he possessed more than fifty firearms. He argues that

the mere fact that the firearms were seized from his residence is

insufficient to establish possession. However, Caldwell’s argument

ignores the concept of constructive possession, wherein it is

sufficient to prove that “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). A Special Agent with

the Bureau of Alcohol, Tobacco, Firearms, and Explosives testified

that more than fifty firearms and more than 47,000 rounds of

ammunition were seized from Caldwell’s residence. Further,

witnesses testified that they had not only heard Caldwell speak

about the firearms he owned, but also witnessed him shoot various

firearms. Additionally, Caldwell acknowledges that he was a

firearm enthusiast. Therefore, we conclude the district court did

not clearly err in finding Caldwell possessed more than fifty

firearms, and, consequently, the district court properly applied

the sentencing enhancements. 
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Caldwell’s final contention is that it was “fundamentally

unfair” for the district court to calculate his offense level using

the law in effect at the time of the commission of the offense and

then apply the guidelines as advisory rather than mandatory.

Caldwell committed the instant offense in February 2003, more than

one year before the ban on semiautomatic firearms was repealed.

See 18 U.S.C. § 921 (2000) (amendments and historical notes).

Therefore, § 921(a)(30)(B) was properly treated as remaining in

force for sentencing purposes. See 1 U.S.C. § 109 (2000).

Further, the district court appropriately treated the Sentencing

Guidelines as advisory because sentencing occurred post-Booker.

Because the district court properly calculated and considered the

advisory guideline range and weighed the relevant § 3553(a)

factors, we conclude Caldwell’s sentence was reasonable.

Accordingly, we affirm Caldwell’s 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