UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4488
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY SCOTT HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:10-cr-00080-FL-1)
Submitted: April 30, 2012 Decided: May 4, 2012
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Scott Hill was convicted by a jury of possessing
a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g) (2006), and sentenced to 262 months’ imprisonment. He
noted a timely appeal, challenging the sufficiency of the
evidence and the reasonableness of his sentence. For the
reasons that follow, we affirm.
The evidence presented at Hill’s trial, viewed in the
light most favorable to the Government, see United States v.
Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as
follows. On October 25, 2009, the Harnett County Sheriff’s
Office received a 911 “domestic disturbance” call from Denise
Miller — Hill’s live-in girlfriend. Miller claimed that Hill
had barricaded himself inside the home he shared with her and
would not let her in. Deputy Jose Peralta testified that, when
he arrived at the home, he knocked on the front door and, after
receiving no response, went around to the back door where,
again, he received no response after knocking. Peralta called
Miller and advised that no one appeared to be in the home and
that she could return. Peralta also spoke with Hill on his cell
phone, and was told by Hill that he was not in the home.
Shortly thereafter, Miller arrived and asked Peralta to check
the residence for her. Miller unlocked the back door for
Peralta and Deputy Robbie Adams (who had arrived just after
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Miller); the two deputies searched the home and, upon entering
the living room, saw a shotgun in plain sight leaning against
the wall next to the front door, as well as a green bag
containing shotgun shells. A criminal history check revealed
that Hill was a convicted felon.
Hill soon arrived, and, when asked about the shotgun,
said, “It’s not mine. It belongs to [Miller’s] brother, and he
let me borrowed [sic] it because I heard noises in the back of
the property, and I got it for my protection.” Adams testified
that when he asked Hill why he had the shotgun, Hill replied,
“You know, I’m paranoid. They’re out to get me.”
Miller testified that, although she told the 911
dispatcher that she thought Hill had her brother’s shotgun in
the house, she had never seen Hill in possession of the gun, nor
had she seen it in her house prior to its discovery by the
deputies. According to Miller, approximately two weeks after
Hill’s arrest, her son, Clay Baker, and her nephew, Brandon
Miller, came to her and said that they — not Hill — had borrowed
the shotgun from Miller’s brother.
Miller’s brother, Kent Miller, testified that Brandon
and Clay had borrowed his shotgun some time before October 25,
2009, and that he had never loaned the gun to Hill. Both
Brandon and Clay also testified that it was they, not Hill, who
had borrowed the shotgun from Kent Miller. At the conclusion of
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the Government’s evidence, Hill moved for a judgment of
acquittal, Fed. R. Crim. P. 29, on the basis of insufficient
evidence; the motion was denied. The jury found Hill guilty as
to Count Three of the indictment (which charged him with
possessing a firearm on October 25, 2009); he was acquitted as
to Count One (charging him with possessing a different firearm
on a prior occasion).
The presentence report (“PSR”) assigned Hill a base
offense level of 22, U.S. Sentencing Guidelines Manual (USSG),
§ 2K2.1(a)(3) (2010), and a four-level increase because he
possessed the firearm in connection with the commission of
another offense, USSG § 2K2.1(b)(6) — based on conduct of which
Hill was acquitted — or a total offense level of 26. However,
because he had three prior violent felony convictions, Hill
qualified as an armed career criminal and was assigned an
offense level of 34. See 18 U.S.C. § 924(e), USSG § 4B1.4.
Based on a criminal history category of VI, Hill’s advisory
Guidelines range was determined to be 262-327 months
imprisonment. The court imposed a sentence at the bottom of the
range; Hill timely appealed.
Hill first argues that the evidence was insufficient
to support his conviction because the Government presented no
physical evidence linking him to the firearm at issue and three
witnesses testified that Hill had not borrowed the shotgun.
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When a defendant challenges the sufficiency of the evidence
supporting the jury’s guilty verdict, we view the evidence and
all reasonable inferences in favor of the Government and will
uphold the jury’s verdict if it is supported by substantial
evidence. United States v. Cameron, 573 F.3d 179, 183 (4th Cir.
2009). “[S]ubstantial 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). In reviewing
for substantial evidence, we will not weigh evidence or review
witness credibility. United States v. Wilson, 118 F.3d 228, 234
(4th Cir. 1997). Rather, it is the role of the jury to judge
the credibility of witnesses, resolve conflicts in testimony,
and weigh the evidence. Id.; United States v. Manbeck, 744 F.2d
360, 392 (4th Cir. 1984). Appellate reversal on grounds of
insufficient evidence “will be confined to cases where the
prosecution’s failure is clear.” United States v. Green,
599 F.3d 360, 367 (4th Cir. 2010) (internal quotation marks
omitted).
To convict Hill of violating § 922(g), the Government
need not produce evidence of actual possession; constructive
possession is sufficient. United States v. Gallimore, 247 F.3d
134, 136-37 (4th Cir. 2001). The Government may prove
constructive possession by demonstrating that the defendant
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“exercised, or had the power to exercise, dominion and control
over the item.” Id. at 137 (internal quotation marks omitted).
We find that the evidence was sufficient to establish
Hill’s constructive possession of the firearm. Miller reported
to the 911 operator that she had reason to believe Hill was
barricaded in the house and that he had a shotgun; deputies saw
the shotgun in plain sight; Hill admitted several times that he
had borrowed the shotgun from Miller’s brother. Although Hill
presented testimony to prove that Miller’s son and nephew had
borrowed the shotgun, the jury apparently did not believe their
testimony. This court does not review the credibility of
witnesses and assumes the factfinder resolved all contradictions
in the testimony in favor of the Government. United States v.
Sun, 278 F.3d 302, 313 (4th Cir. 2002).
Next, Hill argues that his sentence is unreasonable
because: (a) the district court relied upon acquitted conduct
and unreliable testimony in calculating his offense level, and
(b) the court failed to adequately explain the reasons for the
chosen sentence.
Hill was charged with two counts of being a felon in
possession of a firearm: Count One alleged possession of a 20-
gauge shotgun on May 16, 2008; Count Two alleged possession of
the shotgun found at his residence on October 25, 2009. The
jury acquitted Hill as to Count One. Nevertheless, at
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sentencing, the district court held Hill accountable for the
firearm charged in Count One and assigned an offense level of
34, not 33, because the firearm was one described in 26 U.S.C.
§ 5845(a).
A sentencing court may consider uncharged and
acquitted conduct in determining a sentence so long as it is
proven by a preponderance of the evidence. United States v.
Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009). Here, the
district court found that the testimony presented by the
Government as to Count One was credible and proved, by a
preponderance of the evidence, that Hill possessed the shotgun
on May 16, 2008. We find no error in the district court’s
conclusion.
Hill also argues that his sentence is unreasonable
because the district court failed to adequately explain the
chosen sentence. In reviewing a sentence, this court must first
ensure that the district court did not commit any “significant
procedural error,” such as failing to properly calculate the
applicable Guidelines range, failing to consider the 18 U.S.C. §
3553(a) (2006) factors, or failing to adequately explain the
sentence. Gall v. United States, 552 U.S. 38, 51 (2007). The
district court is not required to “robotically tick through §
3553(a)’s every subsection.” United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006). However, the district court “must
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place on the record an ‘individualized assessment’ based on the
particular facts of the case before it. This individualized
assessment need not be elaborate or lengthy, but it must provide
a rationale tailored to the particular case at hand and adequate
to permit ‘meaningful appellate review.’” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552
U.S. at 50) (internal footnote omitted)).
Our review of the sentencing transcript discloses that
the district court properly considered the relevant § 3553(a)
factors and adequately explained the chosen sentence.
Accordingly, we affirm Hill’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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