United States v. Roe

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4374

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

LAVELLE ROE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00218-REP-1)

Submitted: March 17, 2011 Decided: April 7, 2011

Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Mary E. Maguire, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Lavelle Roe appeals from his conviction for possession

of a firearm by a convicted felon and his resulting ninety-two

month sentence. On appeal, he challenges the sufficiency of the

evidence and the reasonableness of his sentence. We affirm.

First, Roe challenges the sufficiency of the evidence

supporting his conviction. Specifically, Roe contends that no

witness ever saw him in possession of the firearm. He also

asserts that his DNA, which was found on the gun, could have

been placed on the gun by an incidental secondary transfer.

We review de novo a district court’s denial of a Fed.

R. Crim. P. 29 motion for a judgment of acquittal. United

States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A defendant

challenging the sufficiency of the evidence bears a heavy

burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997). A jury verdict 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. 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 omitted).

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“The 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

omitted). “Reversal for insufficient evidence is reserved for

the rare case where the prosecution’s failure is clear.” Id.

(internal quotation marks omitted).

To establish a violation of 18 U.S.C. § 922(g)(1)

(2006), the Government must prove that: (1) Roe 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). Roe stipulated

that he had previously been convicted of a felony and that the

firearm traveled in interstate commerce. Thus, the Government

had only to prove Roe’s knowing possession. To prove possession

under § 922(g)(1), the Government need not show “actual or

exclusive possession; constructive or joint possession is

sufficient. The Government may prove constructive possession by

demonstrating that the defendant exercised, or had the power to

exercise, dominion and control” over the firearm. Gallimore,

247 F.3d at 136-37 (internal quotation marks and citations

omitted).

Here, viewing the evidence in the light most favorable

to the Government, we find that there was sufficient evidence

from which the jury could conclude beyond a reasonable doubt

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that Roe constructively possessed the firearm. Deltasha Taylor,

Roe’s girlfriend, testified that the guns were Roe’s and that he

acknowledged his possession by agreeing to remove them from her

home and by requesting permission to store them in the basement.

Roe also told Taylor, after the seizure of the guns from a

vehicle in which he was a passenger, that the police took them,

supporting an inference that the guns in the car and the house

were one and the same. Moreover, the firearm with which Roe was

charged was found in the glove compartment of the car in which

he was seated in the front passenger seat. Even more

incriminating, the firearm had Roe’s DNA on it. The evidence

presented by the Government was more than sufficient for the

jury to conclude beyond a reasonable doubt that Roe had dominion

and control over the firearm.

II.

Roe claims that the district court misunderstood its

authority to grant a variance and incorrectly believed that it

was constrained from granting a variance on the grounds of lack

of youthful guidance. However, the record, read in its

entirety, reveals that the district court understood its

authority to impose a variance sentence, but declined to do so.

The court heard from both Roe and the Government on this issue,

noted the advisory nature of the Sentencing Guidelines, made

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certain comments regarding its opinions on the Guidelines’

departure rules, and explicitly recognized that departures and

variances are treated differently. The district court concluded

that the arguments proffered by Roe at sentencing were not

sufficient to diverge from the Guidelines range. We find that

the district court’s decision was proper. See United States v.

Hampton, 441 F.3d 284, 287 (4th Cir. 2006) (variance must be

supported by the facts of the particular case).

III.

Roe next claims that the district court’s explanation

for the chosen sentence was insufficient. In evaluating the

sentencing court’s explanation of a selected sentence, we have

consistently held that, while a district court must consider the

statutory factors and explain its sentence, it need not

explicitly reference 18 U.S.C. § 3553(a) (2006), or discuss

every factor on the record, particularly when the court imposes

a sentence within a properly calculated Guidelines range.

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).

But, at the same time, the district court “must make an

individualized assessment based on the facts presented.”

Gall v. United States, 552 U.S. 38, 50 (2007). Moreover, the

district court must state the individualized reasons that

justify a sentence, even when sentencing a defendant within the

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Guidelines range. Rita v. United States, 551 U.S. 338, 356-57

(2007). The reasons articulated by the district court for a

given sentence need not be “couched in the precise language of

§ 3553(a),” so long as the “reasons can be matched to a factor

appropriate for consideration . . . and [are] clearly tied [to

the defendant’s] particular situation.” United States v.

Moulden, 478 F.3d 652, 658 (4th Cir. 2007).

Here, the district court stated that it would not vary

the sentence on the grounds proffered by Roe, concluded that a

Guidelines sentence was “sufficient but not greater than

necessary,” and delineated the § 3553 factors that applied to

Roe’s case. While the court did not give explicit reasons as to

why it was declining to vary Roe’s sentence or how specifically

the § 3553 factors applied in Roe’s case, the court’s reasoning,

along with the court’s earlier statements regarding Roe’s

criminal history and the relatively small variance Roe was

seeking, was sufficient. Importantly, the court explicitly

concluded that a Guidelines sentence satisfied the statutory

sentencing factors. We conclude that there was no error in the

district court’s explanation of Roe’s within-Guidelines

sentence.

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IV.

Finally, Roe asserts that the district court plainly

erred in calculating his criminal history category by giving him

a point for a crime he committed as a minor when the sentence

for that crime was imposed more than five years before the

commencement of the instant offense. See U.S. Sentencing

Guidelines Manual § 4A1.2(d)(2)(B) (2009). The Government does

not dispute that an error was committed but contends that the

removal of one criminal history point would not have altered

Roe’s criminal history score. In response, Roe agrees that his

score would not have been altered but argues that the removal of

the one point, together with the application of Amendment 742 to

an unrelated Guidelines section, 1 would have placed Roe in a

lower Criminal History Category.

However, in his reply brief, Roe admits that he is

raising “this issue now so that he can raise it before the

district court when this case goes back for resentencing.”

Presumably admitting that he would not otherwise be entitled to

relief under this provision, 2 Roe states that the “Court need not

1
See USSG § 4A1.1 (amended on November 2010 to remove
“recency” point for commission of the instant offense less than
two years after release from imprisonment). This section was
amended after Roe was sentenced.
2
See USSG § 1B1.10(c) (Amendment 742 not listed as
retroactively applicable).

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rule on this issue now, but Mr. Roe requests that when the Court

remands this case, it instruct the district court to consider

the issue.” Given the fact that none of his other claims

entitle him to relief, Roe has waived consideration of this

claim.

Based on the foregoing, we affirm Roe’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