                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-4214


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LAMONT P. MASON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00214-RLW-1)


Submitted:    August 21, 2009              Decided:   September 18, 2009


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant.   Dana J. Boente, United States Attorney, Kevin C.
Nunnally, Special Assistant United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            After a jury trial, Lamont P. Mason was convicted of

one count of possession with intent to distribute five grams or

more   of   cocaine      base,    in   violation    of    21    U.S.C.     § 841(a)(1)

(2006), one count of possession of a firearm in furtherance of a

drug   trafficking       crime,    in    violation       of    18    U.S.C.   § 924(c)

(2006), and one count of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (2006).                       On appeal,

Mason asserts the evidence was insufficient to support the drug

conviction or the possession of a firearm in furtherance of a

drug   trafficking       crime    conviction.        He       also    challenges     the

district court’s decision not to give a jury instruction about

impeaching witnesses with a felony conviction.                       In addition, he

claims    there    was    plain   error    when    the    prosecutor       engaged   in

misconduct by vouching for a witness and asserting facts not in

evidence.     Finally, Mason claims the cumulative effect of the

errors calls for a reversal.            We affirm.

            “A     defendant       challenging      the       sufficiency     of     the

evidence faces a heavy burden.”                 United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690

(2008).     We review a sufficiency of the evidence challenge by

determining       whether,   viewing      the   evidence       in    the   light   most

favorable to the Government, any rational trier of fact could

find the essential elements of the crime beyond a reasonable

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doubt.      United States v. Collins, 412 F.3d 515, 519 (4th Cir.

2005); see Glasser v. United States, 315 U.S. 60, 80 (1942).                            We

review both direct and circumstantial evidence, and accord the

Government all reasonable inferences that could be drawn in its

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

2008),      and    will    uphold    the       jury’s     verdict   if   substantial

evidence supports it, and will reverse only in those rare cases

of clear failure by the prosecution.                      Foster, 507 F.3d at 244-

45.

             “To convict a defendant of possession with the intent

to distribute, the [G]overnment must prove:                     (1) possession of a

narcotic controlled substance; (2) knowledge of the possession;

and (3) the intent to distribute.”                  Collins, 412 F.3d at 519.

             To establish a § 924(c)(1) violation, the Government

must also present evidence “indicating that the possession of

the    firearm      furthered,      advanced,        or    helped   forward   a      drug

trafficking crime.”          United States v. Lomax, 293 F.3d 701, 705

(4th Cir. 2002).           Whether a firearm served such a purpose is a

question of fact.           Id.     A series of factors that might lead a

reasonable        finder   of     fact    to       conclude   the   existence     of    a

connection between a defendant’s possession of a firearm and his

drug trafficking crime include, but are not limited to:                              “the

type   of    drug    activity     being    conducted,         accessibility     of     the

firearm, the type of weapon, whether the weapon is stolen, the

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status of the possession (legitimate or illegal), whether the

gun is loaded, proximity to drugs or drug profits, and the time

and circumstances under which the gun is found.”                      Id. (internal

quotation marks omitted).

            We find after considering the testimony of the four

law    enforcement       personnel    and       the    expert   witness,     that   the

evidence was more than substantial to support the jury’s verdict

with respect to both charges.

            The decision to give or not to give a jury instruction

is reviewed for abuse of discretion.                    United States v. Seidman,

156 F.3d 542, 551 (4th Cir. 1998).                    This court reviews a charge

to determine if the court adequately instructed the jury on the

elements   of     the    offense   and   the      accused’s     defenses.      United

States v. Fowler, 932 F.2d 306, 317 (4th Cir. 1991).                          A judge

must   clearly     and    fairly     state      the    controlling    law.     United

States v. Childress, 26 F.3d 498, 503 (4th Cir. 1994).                              “A

district court’s refusal to provide an instruction requested by

a     defendant     constitutes        reversible          error     only     if    the

instruction:      (1) was correct; (2) was not substantially covered

by the court’s charge to the jury; and (3) dealt with some point

in the trial so important, that failure to give the requested

instruction       seriously    impaired          the    defendant’s     ability      to

conduct his defense.”         United States v. Lewis, 53 F.3d 29, 32-33

(4th Cir. 1995) (internal quotation marks omitted).                           We find

                                            4
that the court’s decision not to give the requested instruction

did not seriously impair Mason’s ability to conduct his defense.

              Insofar      as   Mason    claims     the       prosecutor     engaged      in

misconduct during the closing arguments, we note review is for

plain error because Mason failed to object.                           United States v.

Olano, 507 U.S. 725, 732 (1993).                 Plain error requires a finding

that:    (1) there was error; (2) the error was “plain”; and (3)

the error affected his substantial rights.                          Id.    If the three

elements of this standard are met, this court may still exercise

its discretion to notice the error only “if the error seriously

affect[s]      the     fairness,      integrity,         or   public      reputation     of

judicial proceedings.”           Id. at 736.

              Improper remarks during closing do not always result

in   a      retrial.          “The     relevant     question         is     whether     the

prosecutors’ comments so infected the trial with unfairness as

to   make    the     resulting       conviction     a    denial      of   due    process.”

United      States    v.   Higgs,      353   F.3d   281,       330   (4th    Cir.      2003)

(internal quotation marks omitted).                     “[T]he test for reversible

prosecutorial        misconduct       generally         has   two    components:       that

(1) the prosecutor’s remarks or conduct must in fact have been

improper,      and      (2)     such     remarks         or     conduct         must    have

prejudicially affected the defendant’s substantial rights so as

to deprive the defendant of a fair trial.”                           United States v.



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Mitchell, 1 F.3d 235, 240 (4th Cir. 1993) (internal quotation

marks omitted).

             In evaluating prejudice, a number of factors should be

considered:

       (1) the degree to which the prosecutor’s remarks have
       a tendency to mislead the jury and to prejudice the
       accused; (2) whether the remarks were isolated or
       extensive; (3) absent the remarks, the strength of
       competent proof introduced to establish the guilt of
       the accused; and (4) whether the comments were
       deliberately   placed  before    the jury  to  divert
       attention to extraneous matters.

Mitchell, 1 F.3d at 241.             Whether the errors must result in a

reversal is dependent upon the facts in each case.                    Id.

             Given the strength of the Government’s case, the fact

that   the   misconduct        concerned     a   witness    whose     testimony     was

mostly redundant and the fact the jury was instructed to rely

upon   its   own    recollection        of   the    evidence,    we   find    Mason’s

substantial rights were not prejudiced.

             Finally,     we     find   that       under   the   cumulative       error

doctrine, Mason’s substantial rights to a fair trial were not

affected.     See United States v. Martinez, 277 F.3d 517, 532 (4th

Cir. 2002).

             Accordingly, we affirm the convictions and sentence.

We   dispense      with   oral    argument       because   the   facts      and   legal




                                             6
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED




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