UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4374
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
I.
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
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