                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-5124



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DEREK JOHNSON, JR.,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-05-47)


Submitted:   June 30, 2006                 Decided:   July 31, 2006


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Robert A. J.
Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Derek Johnson, Jr., appeals his conviction, after a jury

trial, of one count of possession of a firearm after having been

convicted      of    a   crime     punishable      by    more    than    one   year    of

imprisonment, in violation of 18 U.S.C. § 922(g) (2000).                               On

appeal, Johnson argues that the district court erred in denying his

motion    for       judgment      of   acquittal       because   the     evidence     was

insufficient to sustain the jury’s verdict, and that the district

court erred in giving an instruction on constructive possession.

We affirm.

            Johnson first argues that the evidence was insufficient

to   support    the      jury’s    verdict.        A    defendant   challenging       the

sufficiency of the evidence faces a heavy burden. United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). “[A]n appellate

court’s   reversal        of   a    conviction     on    grounds    of    insufficient

evidence should be confined to cases where the prosecution’s

failure is clear.”         United States v. Jones, 735 F.2d 785, 791 (4th

Cir. 1984).     A jury’s verdict must be upheld on appeal if there is

substantial evidence in the record to support it.                          Glasser v.

United States, 315 U.S. 60, 80 (1942).                  In determining whether the

evidence in the record is substantial, we view the evidence in the

light most favorable to the government, and inquire whether there

is evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of the defendant’s


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guilt beyond a reasonable doubt.           United States v. Burgos, 94 F.3d

849,   862   (4th   Cir.    1996)    (en   banc).       We   do     not   review    the

credibility of the witnesses and assume that the jury resolved all

contradictions in the testimony in favor of the government. United

States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).

             The elements of a violation of § 922(g)(1) are that:

“(1)   the   defendant     previously      had   been    convicted        of   a   crime

punishable by a term of imprisonment exceeding one year; (2) the

defendant knowingly possessed . . . the firearm; and (3) the

possession was in or affecting commerce, because the firearm had

traveled in interstate or foreign commerce.”                       United States v.

Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).                           Johnson

stipulated to a prior felony conviction and to the interstate or

foreign commerce element, disputing only the knowing possession

element.     Possession may be actual or constructive.                United States

v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992).                         A person has

constructive possession of an item if he knows of its presence and

exercises or has the power to exercise dominion and control over

it.    United States v. Scott, 424 F.3d 431, 435 (4th Cir.), cert.

denied, 126 S. Ct. 779 (2005).             Possession may be established by

circumstantial evidence.            United States v. Nelson, 6 F.3d 1049,

1053 (4th Cir. 1993).          Our review of the record leads us to

conclude     that   the    evidence    presented        to   the    jury,      although




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circumstantial, was sufficient to prove that Johnson possessed the

firearm in question.

            Johnson also argues that the district court erred in

instructing the jury on constructive possession.            In general, the

decision whether to give a jury instruction, and the content of

that instruction, are reviewed for an abuse of discretion.                United

States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995).             Johnson does

not contest the content of the instruction, but asserts that it was

improper because there was no evidence to support it.              We conclude

that this argument is contradicted by evidence that sufficiently

connected   Johnson    to     the   firearm   and   supported   the   court’s

instruction on constructive possession.

            We therefore affirm Johnson’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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