UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4409
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES EDWARD PHILSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:05-cr-00067-F)
Submitted: March 9, 2007 Decided: April 3, 2007
Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Charles Edward Philson of possessing a
Lorcin .380 caliber firearm and ammunition after previously being
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1)
(2000). The district court sentenced him to the statutory maximum
term of 120 months of imprisonment. See 18 U.S.C.A. § 924(a)(2)
(West 2000 & Supp. 2006). Philson appeals his conviction and
sentence, contending that the evidence was insufficient and that
the district court violated his Sixth Amendment rights at
sentencing.* Finding no reversible error, we affirm.
Philson asserts that the evidence was insufficient to
convict him because the Government failed to prove he knowingly
possessed the firearm officers found between the mattress and box
spring in his bedroom. We review de novo the district court’s
decision to deny a motion filed under Fed. R. Crim. P. 29. United
States v. Smith, 451 F.3d 209, 216 (4th Cir.), cert. denied, 127 S.
Ct. 197 (2006).
Where, as here, the motion was based on a claim of
insufficient evidence, “[t]he verdict of a jury must be sustained
if there is substantial evidence, taking the view most favorable to
*
Philson also has filed pro se supplemental briefs raising
several issues. We have carefully considered the arguments raised
in the pro se briefs and find them to be without merit. To the
extent Philson claims that counsel provided ineffective assistance,
we decline to review that claim on direct appeal. See United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.) (providing
standard), cert. denied, 126 S. Ct. 1407 (2006).
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the Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942); Smith, 451 F.3d at 216. This court “must consider
circumstantial as well as direct evidence, and allow the government
the benefit of all reasonable inferences from the facts proven to
those sought to be established.” United States v. Tresvant, 677
F.2d 1018, 1021 (4th Cir. 1982). We “can reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir.)
(internal quotation marks and citation omitted), cert. denied, 127
S. Ct. 452 (2006). Applying these principles, our careful review
of the trial testimony convinces us that Philson has not met the
heavy burden he faces in seeking to overturn his conviction. Thus,
we conclude that the evidence was sufficient for the jury to find
that Philson knowingly possessed the firearm found between the
mattress and box spring of his bed. See id. at 395 (setting forth
elements of § 922(g)(1) offense); United States v. Scott, 424 F.3d
431, 435-36 (4th Cir.) (discussing constructive possession), cert.
denied, 126 S. Ct. 779 (2005).
Philson also contends on appeal that, in sentencing him,
the district court violated his Sixth Amendment rights by enhancing
his base offense level based on a type of weapon about which there
was no evidence presented at trial and by sentencing him under de
facto mandatory guidelines. Because Philson did not challenge in
the district court his sentence on Sixth Amendment grounds, this
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court’s review is for plain error. United States v. Hughes, 401
F.3d 540, 547-48, 555 (4th Cir. 2005) (discussing standard).
After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
sentencing guidelines. However, in imposing a sentence
post-Booker, courts still must calculate the applicable guideline
range after making the appropriate findings of fact and consider
the range in conjunction with other relevant factors under the
guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). We will affirm a post-Booker
sentence if it “is within the statutorily prescribed range and is
reasonable.” Id. at 433 (internal quotation marks and citation
omitted). “[A] sentence within the proper advisory Guidelines
range is presumptively reasonable.” United States v. Johnson, 445
F.3d 339, 341 (4th Cir. 2006).
Here, the district court sentenced Philson post-Booker
and appropriately treated the properly calculated guidelines range
as advisory. The district court then considered that range along
with the factors in § 3553(a), taking into account the arguments
from Philson and his counsel about Philson’s employment history
before his arrest, family circumstances, the effect his arrest had
on his children, and that he was a “victim of circumstance.” The
court ultimately imposed the statutory maximum sentence. Nothing
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in the record demonstrates that Philson has rebutted the
presumption of reasonableness. We therefore find that the sentence
imposed by the district court is reasonable.
Accordingly, we affirm Philson’s conviction and sentence.
We deny Philson’s motion to relieve his attorney and 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
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