UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4903
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:09-cr-00081-WDQ-1)
Submitted: February 14, 2011 Decided: March 17, 2011
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Paula Xinis, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Christopher Mason,
Special Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Anthony Thompson of
possession of a firearm after having previously been convicted
of a crime punishable by a term exceeding one year of
imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006). The
district court sentenced Thompson to 235 months of imprisonment
and he now appeals. For the reasons that follow, we affirm.
Thompson first argues that an expert’s testimony
regarding the interstate nexus of the firearm he possessed
violated the Confrontation Clause of the Sixth Amendment because
it was based on inadmissible hearsay. “The Sixth Amendment to
the United States Constitution, made applicable to the States
via the Fourteenth Amendment, . . . provides that [i]n all
criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.”
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009)
(internal quotation marks and citation omitted). Therefore, a
witness’ testimony is “inadmissible unless the witness appears
at trial or, if the witness is unavailable, the defendant had a
prior opportunity for cross-examination.” Id. (quoting
Crawford v. Washington, 541 U.S. 36, 51, 54 (2004)) (internal
quotation marks omitted).
However, while “Crawford forbids the introduction of
testimonial hearsay as evidence in itself, . . . it in no way
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prevents expert witnesses from offering their independent
judgments merely because those judgments were in some part
informed by their exposure to otherwise inadmissible evidence.”
United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). An
expert’s reliance on testimonial hearsay “only becomes a problem
where the witness is used as little more than a conduit or
transmitter for testimonial hearsay, rather than as a true
expert whose considered opinion sheds light on some specialized
factual situation.” Id. The test is whether the expert is
giving an independent judgment or “merely acting as a
transmitter for testimonial hearsay.” Id. “As long as he is
applying his training and experience to the sources before him
and reaching an independent judgment, there will typically be no
Crawford problem.” Id. We have thoroughly reviewed the record
and conclude that the expert witness’ testimony was not used as
a mere conduit for testimonial hearsay. Therefore, the expert’s
testimony did not violate Thompson’s Sixth Amendment rights.
Thompson next argues that there was insufficient
evidence to support the conviction. This court reviews a
district court’s decision to deny a Rule 29 motion for a
judgment of acquittal de novo. United States v. Smith, 451 F.3d
209, 216 (4th Cir. 2006). A defendant challenging the
sufficiency of the evidence faces a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The
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verdict of a jury must be sustained “if, viewing the evidence in
the light most favorable to the prosecution, the verdict is
supported by ‘substantial evidence.’” Smith, 451 F.3d at 216
(citations omitted). Substantial evidence is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id. (internal quotation marks and citation
omitted). Furthermore, “[t]he jury, not the reviewing court,
weighs the credibility of the evidence and resolves any
conflicts in the evidence presented.” Beidler, 110 F.3d at 1067
(internal quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
Moreover, to establish a violation of 18 U.S.C.
§ 922(g)(1), the Government was required to prove that:
(1) Thompson was a convicted felon; (2) he knowingly possessed a
firearm; and (3) the firearm traveled in interstate commerce.
See United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.
2001). Our review of the record compels us to conclude that the
Government presented substantial evidence from which the jury
could conclude that Thompson was guilty of the charged offense.
Finally, Thompson argues that the sentence is
procedurally and substantively unreasonable. We review a
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sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); see
also United States v. Layton, 564 F.3d 330, 335 (4th Cir.),
cert. denied, 130 S. Ct. 290 (2009). In so doing, we first
examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
[g]uidelines range, treating the [g]uidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence . . . .”
Gall, 128 S. Ct. at 597. Finally, we then “‘consider the
substantive reasonableness of the sentence imposed.’” United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting
Gall, 552 U.S. at 51). This court presumes on appeal that a
sentence within a properly calculated advisory guidelines range
is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56
(2007) (upholding presumption of reasonableness for within
guidelines sentence).
In imposing a sentence, a district court must conduct
an “individualized assessment” of the particular facts of every
sentence, whether the court imposes a sentence above, below, or
within the guidelines range. United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009). In addition, “[w]here [the parties]
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present[] nonfrivolous reasons for imposing a . . . sentence
[outside the advisory guidelines range,] . . . a district judge
should address the party’s arguments and explain why he has
rejected those arguments.” Id. at 328 (internal quotation marks
and citation omitted). “By drawing arguments from § 3553 for a
sentence different than the one ultimately imposed, an aggrieved
party sufficiently alerts the district court of its
responsibility to render an individualized explanation
addressing those arguments, and thus preserves its claim.”
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).
When the claim is preserved, this court reviews the
issue for an abuse of discretion. Id. at 576, 579. If the
district court abused its discretion, this court will “reverse
unless . . . the error was harmless.” Id. at 576. Where the
district court commits error, the government bears the burden of
demonstrating that the error was harmless. Id. at 585.
Thompson argues that the district court failed to conduct an
individualized assessment of the case and the § 3553(a) factors
and failed to respond to his sentencing arguments. Having
reviewed the record, however, we are not persuaded the district
court erred. Moreover, we are satisfied that even if error
occurred, it was harmless. Finally, Thompson has failed to
rebut the presumption of reasonableness this court applies to
his within-guidelines sentence.
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Accordingly, we affirm the judgment of the district
court. 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 in the decisional
process.
AFFIRMED
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