                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4173


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RONNIE GRAY WESTMORELAND,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00101-NCT-1)


Submitted:   September 30, 2013           Decided:   October 10, 2013


Before WILKINSON and    GREGORY,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Andrew C. Cochran, Special Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ronnie Gray Westmoreland was convicted after a jury

trial of being a felon in possession of a firearm, in violation

of 18 U.S.C. §§ 922(g)(1), 924(e) (2006).                            The district court

sentenced Westmoreland to 235 months’ imprisonment.                             On appeal,

Westmoreland      asserts       that:    (1)       the     district     court    erred    in

denying    his        motion     to     suppress          statements     made     to     law

enforcement       officers;      (2)     the       evidence     was    insufficient      to

sustain     a      conviction;          (3)        his     235-month      sentence        is

unreasonable; (4) the district court erred in sentencing him

pursuant   to     the    Armed    Career       Criminal        Act   (“ACCA”);    and    (5)

§ 922(g)(1)       exceeds       Congress’          authority     under    the     Commerce

Clause.    For the following reasons, we affirm.

            (1)       Motion to Suppress.                Westmoreland first contends

that the district court erred in denying the motion to suppress

because    he     was    entitled       to,    but       did   not    receive,     Miranda

warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), during

questioning      by     law    enforcement.           We    review     factual    findings

underlying the district court’s denial of a motion to suppress

for clear error and its legal conclusions de novo, United States

v. Foster, 634 F.3d 243, 246 (4th Cir. 2011), in the light most

favorable to the government, United States v. Farrior, 535 F.3d

210, 217 (4th Cir. 2008).



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               “Statements         obtained         from     [a]     defendant     during

custodial        interrogation           are       presumptively       compelled,”        in

violation of the Fifth Amendment, unless the government shows

“that     law    enforcement           officers     (1)     adequately    informed       the

defendant of his Miranda rights and (2) obtained a waiver of

those rights.”             United States v. Cardwell, 433 F.3d 378, 388-89

(4th    Cir.    2005)        (footnote     omitted).         To    determine    whether    a

defendant was in custody for Miranda purposes, courts are to

determine “first, what were the circumstances surrounding the

interrogation; and second, given those circumstances, would a

reasonable person have felt he or she was not at liberty to

terminate the interrogation and leave.”                           Thompson v. Keohane,

516 U.S. 99, 112 (1995) (footnote omitted).                            In other words,

“[a]n individual is in custody when, under the totality of the

circumstances, a suspect’s freedom from action is curtailed to a

degree     associated           with    formal      arrest.”         United    States     v.

Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal quotation

marks omitted).

               The        testimony    presented      at    the    suppression    hearing

establishes that police officers encountered Westmoreland at a

private residence, that Westmoreland agreed to speak with an

officer, and that he followed the requesting officer into the

kitchen    for        a    relatively      brief     conversation.        There    is     no

evidence       that       the   officers    limited        Westmoreland’s      freedom    of

                                               3
movement    in       any   way    or     drew   their    firearms,           and   the   record

reflects that the officer who spoke to Westmoreland did so in a

cordial and non-threatening tone of voice.                         Because a reasonable

person in Westmoreland’s position would have understood that he

was free to leave and was not in custody, the district court did

not err in denying Westmoreland’s motion to suppress.

               (2)    Sufficiency of the Evidence.                      Westmoreland next

contends       that    without      fingerprint         or   DNA    evidence        from     the

firearm,    insufficient           evidence         supported     his    conviction.             “A

defendant      challenging         the    sufficiency        of   the    evidence        .   .    .

bears a heavy burden.”              United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997) (internal quotation marks omitted).                                         We

will uphold the jury’s verdict “if, viewing the evidence in the

light    most    favorable         to    the    government,        it    is    supported         by

substantial evidence.”              United States v. Reid, 523 F.3d 310, 317

(4th    Cir.    2008).           “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).

In     reviewing       for       substantial         evidence,      we        consider       both

circumstantial and direct evidence and allow the government all

reasonable inferences from the facts shown to those sought to be

established.          United States v. Harvey, 532 F.3d 326, 333 (4th

Cir. 2008).

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             “To show a § 922(g)(1) violation, the government must

prove three elements: (i) that the defendant was a convicted

felon at the time of the offense; (ii) that he voluntarily and

intentionally possessed a firearm; and (iii) that the firearm

traveled in interstate commerce at some point.”                          United States

v.    Gallimore,     247    F.3d    134,   136     (4th      Cir.      2001)    (internal

quotation    marks     omitted).        Our    review     of     the    trial   evidence

convinces    us    that     sufficient     evidence     supports        Westmoreland’s

conviction. ∗

             (3)     Sentence.        Westmoreland        next      asserts     that    his

235-month sentence is unreasonable.                  Specifically, Westmoreland

contends that the district court erred in failing to properly

consider the factors set forth in 18 U.S.C. § 3553(a) (2006).

We review a sentence for reasonableness, applying a “deferential

abuse-of-discretion standard.”                Gall v. United States, 552 U.S.

38, 41 (2007).         This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                           Id. at

51.    Procedurally, after determining whether the district court

correctly    calculated       the     advisory     Guidelines          range,    we    must

decide     whether    the     court    considered       the      § 3553(a)      factors,

analyzed     the      arguments       presented         by     the       parties,       and


       ∗
       The parties          stipulated        to   Westmoreland’s         status       as   a
convicted felon.



                                           5
sufficiently explained the selected sentence.                     United States v.

Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010); United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).

            Once we have determined that the sentence is free of

significant   procedural     error,      we     then     review    its    substantive

reasonableness,     “tak[ing]    into        account      the     totality    of    the

circumstances.”      Gall, 552 U.S. at 51.                     If the sentence is

within the appropriate Guidelines range, we apply a presumption

on appeal that the sentence is reasonable.                        United States v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).                            Such a

presumption   is   rebutted     only     when      the   defendant       demonstrates

“that the sentence is unreasonable when measured against the

§ 3553(a) factors.”         United States v. Montes-Pineda, 445 F.3d

375, 379 (4th Cir. 2006) (internal quotation marks omitted).

            In this case, the district court correctly calculated

and considered the advisory Guidelines range and heard argument

from counsel and allocution from Westmoreland.                           The district

court considered the § 3553(a) factors and explained that the

within-Guidelines     sentence      of       235    months’       imprisonment      was

warranted     in     light       of          Westmoreland’s          history        and

characteristics.     Westmoreland offers no argument to rebut the

presumption   on   appeal    that     his     within-Guidelines          sentence    is

substantively   reasonable.         Accordingly,          we    conclude     that   the



                                         6
district      court     did    not    abuse       its    discretion    in    sentencing

Westmoreland.

              (4)     Armed    Career      Criminal       Sentence.      Westmoreland

next argues that the district court erred in sentencing him as

an   armed    career        criminal.      Because       Westmoreland       raises   this

claim for the first time on appeal, our review is for plain

error.       Lynn, 592 F.3d at 577-78.                  To establish plain error,

Westmoreland must demonstrate that an error occurred, the error

was plain, and the error affected his substantial rights.                            Id.

at 577.

              A defendant convicted of being a felon in possession

of   a   firearm      who    has   three    prior       convictions    for    a   violent

felony or serious drug offense is subject to sentencing as an

armed career criminal.               18 U.S.C. § 924(e)(1); U.S. Sentencing

Guidelines Manual § 4B1.4 (2012).                       Westmoreland contends that

his prior North Carolina convictions for breaking and entering

are not qualifying convictions for purposes of the ACCA.                              We

have held to the contrary on several occasions.                         United States

v. Thompson, 588 F.3d 197 (4th Cir. 2009); United States v.

Thompson, 421 F.3d 278 (4th Cir. 2005) (same); United States v.

Bowden,    975      F.2d    1080   (4th    Cir.     1992)    (same).        The   Supreme

Court’s recent decision in Descamps v. United States, 133 S. Ct.

2276 (2013), does not affect our conclusion.



                                              7
            (5)      Commerce Clause.             Finally, Westmoreland asserts

that 18 U.S.C. § 922(g) exceeds Congress’ authority under the

Commerce Clause because the mere fact that a weapon crossed a

state   line    is    insufficient        to     demonstrate      that    it    affected

interstate     commerce.         Although        Westmoreland     acknowledges        that

this argument is foreclosed by our holding in United States v.

Gallimore,      247      F.3d    134     (4th       Cir.    2001),       he    questions

Gallimore’s validity in light of the Supreme Court’s holdings in

United State v. Lopez, 514 U.S. 549 (1995), United States v.

Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529

U.S. 848 (2000).          In Gallimore, which was decided after Lopez,

Morrison,    and     Jones,     we    held   that    that   the    interstate        nexus

component of § 922(g) is established when the Government can

demonstrate “that a firearm was manufactured outside the state

where the defendant possessed it.”                  Gallimore, 247 F.3d at 138.

One panel of this court may not overrule the precedent set by a

prior panel.         United States v. Rivers, 595 F.3d 558, 564 n.3

(4th Cir. 2010).         Thus, this claim lacks merit.

            Accordingly, we affirm the district court’s judgment.

We   dispense     with    oral       argument     because   the    facts       and   legal

contentions     are    adequately        presented     in   the    materials         before

this court and argument will not aid the decisional process.



                                                                                AFFIRMED

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