UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4809
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REGINALD CORTEZ BOYD, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (CR-05-22)
Submitted: October 31, 2006 Decided: February 15, 2007
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Alexandria,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Brian Lee Whisler, Olivia N. Hawkins, Assistant United States
Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Cortez Boyd, Jr. appeals his convictions and
sentence after a jury trial for possession with intent to
distribute five grams or more of cocaine base, in violation of 21
U.S.C. § 841, possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841, and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c). Boyd asserts that there was insufficient evidence to
support his convictions, the district court erred in refusing to
give supplemental jury instructions, and his sentence was
unreasonable. We affirm.
To determine if there was sufficient evidence to support
a conviction, this court considers whether, taking the evidence in
the light most favorable to the Government, substantial evidence
supports the jury’s verdict. 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) (en banc)). We review both the direct and
circumstantial evidence and accord “the [G]overnment the benefit of
all reasonable inferences from the facts proven to those sought to
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be established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982).
In reviewing claims of sufficiency of the evidence,
“[t]he relevant question is not whether the appellate court is
convinced of guilt beyond a reasonable doubt, but rather whether,
viewing the evidence in the light most favorable to the government,
any rational trier of facts could have found the defendant guilty
beyond a reasonable doubt. Tresvant, 677 F.2d at 1021. Boyd
maintains that he had no knowledge of the drugs or firearm found in
his car and that the government’s evidence does not prove
otherwise. Possession may be actual or constructive. United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). “A person has
constructive possession of a narcotic if he knows of its presence
and has the power to exercise dominion and control over it.”
United States v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985).
Possession “may be established by direct or circumstantial
evidence.” Id.; United States v. Wright, 991 F.2d 1182, 1187 (4th
Cir. 1993). We find, viewing all of the evidence in the light most
favorable to the government, that there was sufficient evidence
that Boyd constructively possessed the drugs and firearm found in
his car.
Next, Boyd asserts that the district court erred in
refusing to give supplemental jury instructions. We review the
decision to give, or not to give, a jury instruction and the
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content of that instruction for an abuse of discretion. United
States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). The district
court’s refusal to grant a requested jury instruction is reversible
error only if the proffered instruction, “(1) was correct; (2) was
not substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important, that failure
to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks and
citations omitted). Boyd has not met the above requirements for
error. Both of Boyd’s requested jury instructions were
substantially covered by the court’s charge to the jury.
Accordingly, we find that the district court did not abuse its
discretion in refusing Boyd’s requested modifications.
Finally, Boyd argues that his sentence was unreasonable
because the district court did not provide an explanation of its
reasons for selecting the sentence and because it implicitly
adopted the government’s position that a sentence within the
advisory guideline range was reasonable.
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, but still must calculate and consider the
guideline range as well as the factors set forth in 18 U.S.C. §
3553(a) (2000). United States v. Hughes, 401 F.3d 540, 546 (4th
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Cir. 2005). We will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id.
A sentence within a properly calculated advisory
guideline range is presumptively reasonable. United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006). This presumption can only be rebutted by a showing that
the sentence is unreasonable when measured against the factors
under 18 U.S.C. § 3553(a) (2000). United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006), petition for cert. filed, __
U.S.L.W. __ (July 21, 2006) (No. 06-5439). Procedurally, a
district court must: (1) properly calculate the sentencing range;
(2) determine whether a sentence within the range adequately serves
the § 3553(a) factors; (3) implement mandatory statutory
limitations; and (4) explain its reasons for selecting the
sentence, especially a sentence outside the range. Green, 436 F.3d
at 455-56.
While a district court must consider the various
§ 3553(a) factors and explain its sentence, it need not explicitly
reference § 3553 or discuss every factor on the record. United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). This is
particularly the case when the court imposes a sentence within the
applicable guideline range.* Id. In determining whether there
*
We note that while Boyd’s sentence was for 211 months, it is
still effectively within the advisory guideline range of 151-188
months as determined by the sentencing court. The 211 months
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has been an adequate explanation, we do not “evaluate a court’s
sentencing statements in a vacuum”; rather, the context surrounding
a court’s explanation “may imbue it with enough content for [the
Court] to evaluate both whether the court considered the § 3553(a)
factors and whether it did so properly.” Montes-Pineda, 445 F.3d
at 381. We find the record reflects that the district court here
adequately and properly considered all of the sentencing factors.
We therefore find Boyd’s sentence was reasonable.
Accordingly, we affirm both Boyd’s convictions 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
included the statutory mandatory minimum of an additional sixty
months, pursuant to 18 U.S.C. § 924(c).
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