UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5002
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMEN LAMAR WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:07-cr-00016-F)
Submitted: September 17, 2008 Decided: November 3, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi
Rangarajan, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damen Lamar Williams was convicted pursuant to a guilty
plea of possession of a firearm by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000), and was sentenced to
92 months in prison. Williams timely appeals. Finding no error,
we affirm.
Williams asserts that the district court improperly
imposed the two-point enhancement for possessing between three and
seven firearms, pursuant to U.S. Sentencing Guidelines Manual
(USSG) § 2K2.1(b)(1)(A) (2006). Section 2K2.1(b)(1)(A) (2006)
provides a two-level enhancement if a defendant possesses three to
seven firearms, and the commentary explains that the points should
be applied only if the firearms were unlawfully sought, possessed,
or distributed. Williams admits that he possessed a shotgun, but
argues that he never handled or possessed the two handguns that
police found in the grass near him. Williams claims he asked his
brother to bring the three firearms to a photo shoot, but he never
touched two handguns, and they were used merely as props by a
friend. Accordingly, Williams argues that the evidence was
insufficient to support the finding that he possessed these
additional weapons.
Following United States v. Booker, 543 U.S. 220 (2005),
a sentencing court continues to make factual findings concerning
sentencing factors by a preponderance of the evidence. United
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States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,
127 S. Ct. 121 (2006). Long-standing authority has permitted a
sentencing court to consider any evidence at sentencing that “has
sufficient indicia of reliability,” see USSG § 6A1.3(a), including
even “conduct underlying [an] acquitted charge, so long as that
conduct has been proved by a preponderance of the evidence.”
United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam);
United States v. Montgomery, 262 F.3d 233, 249 (4th Cir. 2001).
The district court’s factual findings are reviewed for clear error.
United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001). This
deferential standard of review requires reversal only if this court
is “left with the definite and firm conviction that a mistake has
been committed.” United States v. Stevenson, 396 F.3d 538, 542
(4th Cir. 2005) (quoting Anderson v. City of Bessemer City, 470
U.S. 564, 573 (1985)).
As the district court correctly determined, Williams
constructively possessed the two handguns even if he never
physically handled them. Possession of a firearm may be actual or
constructive. United States v. Moye, 454 F.3d 390, 394 (4th Cir.
2006). For constructive possession, Williams merely needed to
voluntarily exercise “dominion and control over the firearm, or
ha[ve] the power and the intention to exercise dominion and control
over the firearm.” United States v. Scott, 424 F.3d 431, 435-36
(4th Cir.), cert. denied, 126 S. Ct. 779 (2005). Williams admits
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that he requested that his brother bring the three firearms to the
photo shoot; thus, the firearms were present solely due to
Williams’s initiative. Williams also had access to all three
loaded weapons, as they were found in close vicinity to him. These
facts support the district court’s conclusion that Williams had the
power to exercise dominion and control over all three firearms.
Accordingly, we conclude that the district court properly applied
the two-point enhancement.
Williams next contends that the district court erred when
it failed to impose a variance sentence because Williams’s use of
the firearms was not for an illicit purpose, but was merely an
“innocent” use of the firearms as props for a photo shoot. Because
Williams had no intention of using the firearms as anything other
than props, he argues that this innocent intention serves as
mitigating evidence warranting a sentence below the guidelines
range.
Despite Williams’s argument that the use of the firearms
was innocuous, and they were merely present as props, the firearms
were found with ammunition. Moreover, the photo shoot was taking
place in an outdoor area of a housing project--a heavily populated
area where passers-by would see the weapons, where a loaded firearm
would be unsafe, and where the mere presence of firearms could
cause a disturbance. Even if the weapons were being used merely as
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props, this does not negate the fact that Williams’s prior felony
conviction rendered possession of firearms unlawful.
Moreover, the district court imposed a sentence within
the statutorily prescribed range and the sentence was reasonable.
While Williams argued at sentencing that a lower sentence should
have been imposed due to an overstated criminal history and a lack
of criminal intent with regard to possession of the firearms, the
district court did not err when it declined to impose a variance
sentence. 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 guidelines
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. 2008).
Gall v. United States, 128 S. Ct. 586, 596 (2007). The court must
give both parties “an opportunity to argue for whatever sentence
they deem appropriate,” and the district judge “may not presume
that the Guidelines range is reasonable.” Gall, 128 S. Ct. at 596-
97. Instead, the court must make an “individualized assessment
based on the facts presented.” Id. at 597. This court will affirm
a post-Booker sentence if it “is within the statutorily prescribed
range and is reasonable.” United States v. Moreland, 437 F.3d 424,
433 (4th Cir. 2006) (internal quotation marks and citation
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omitted). “[A] sentence within the proper advisory Guidelines
range is presumptively reasonable.” United States v. Johnson, 445
F.3d 339, 341 (4th Cir. 2006); see Rita v. United States, 127 S.
Ct. 2456, 2462, 2465 (2007) (permitting appellate courts to afford
a presumption of reasonableness to a within-Guidelines sentence).
Here, the district court appropriately treated the
guidelines as advisory. The court sentenced Williams after
considering the sentencing guidelines and the § 3553(a) factors, as
instructed by Booker. Williams’s ninety-two month sentence is the
bottom of the advisory guidelines range of 92 to 115 months in
prison and well below the ten-year statutory maximum sentence
pursuant to 18 U.S.C. § 924(a)(1) (2000). The court explained that
it had taken the sentencing guidelines and § 3553(a) factors into
account. The court highlighted that Williams’s criminal record
consisted of six drug-related offenses, including two felony
narcotic distribution convictions, and that Williams had been
placed on probation a total of seven times, and his probation was
revoked twice due to violations or new criminal conduct.
Williams’s sentence was thus clearly based upon his extensive prior
record and his continued involvement in criminal activity. We
accordingly conclude the district court did not err in declining to
impose a variance sentence, and that nothing in the record suggests
any information to rebut the presumption that Williams’s sentence
was reasonable.
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Accordingly, we affirm Williams’s conviction 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
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