                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5198


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT BERNARD ALEXANDER,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00269-WO-1)


Submitted:   August 6, 2010                 Decided:     August 17, 2010


Before TRAXLER,   Chief   Judge,   and   GREGORY   and    AGEE,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Greensboro, North Carolina,
Paul A. Weinman, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     A    jury      convicted    Robert    Bernard      Alexander         of   possessing

with intent to distribute 35.9 grams of crack in violation of 21

U.S.C. § § 841(a)(1) and (b)(1)(B). The district court sentenced

Alexander to a prison term of 262 months, and Alexander now

appeals    his      conviction       and   sentence.        Finding       no   error,   we

affirm.

     Alexander        first     challenges       the    district          court’s   order

denying his motion to suppress the cocaine base found during a

search of his residence following his arrest for driving with a

revoked license.         “In reviewing a district court's ruling on a

motion to suppress, we review the court's factual findings for

clear error, and its legal conclusions de novo.”                          United States

v. Cain, 524 F.3d 477, 481 (4th Cir. 2008).                      When the district

court denies a defendant's suppression motion, we construe “the

evidence in the light most favorable to the government.”                            United

States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005).

     Alexander argues that the government failed to meet its

burden    of     establishing        voluntary    consent.            A    statement     is

voluntary      if   it   is   “the    product    of    an    essentially        free    and

unconstrained choice by its maker.”                   Schneckloth v. Bustamonte,

412 U.S. 218, 225 (1973).              The relevant determination regarding

voluntariness is whether government agents have overborne the

defendant’s will or left his “capacity for self-determination

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critically impaired.”                Id.     Whether consent is given voluntarily

or is the product of duress or coercion is a question of fact

that is determined from the totality of all the circumstances

and,       accordingly,         is    reviewed          under      the   clearly     erroneous

standard.          See id. at 248-49 (explaining that “[v]oluntariness

is     a     question      of        fact     to       be    determined      from     all     the

circumstances”); United States v. Lattimore, 87 F.3d 647, 650

(4th       Cir.    1996)   (en       banc)    (“The         voluntariness    of     consent    to

search is a factual question, and as a reviewing court, we must

affirm       the     determination           of    the       district    court     unless     its

finding       is     clearly         erroneous.”).                Relevant    considerations

include       “the    characteristics              of       the   accused    (such    as    age,

maturity, education, intelligence, and experience) as well as

the conditions under which the consent to search was given (such

as the officer's conduct; the number of officers present; and

the    duration,       location,            and    time      of   the    encounter).”         See

Lattimore, 87 F.3d at 650.

       We have reviewed the record and conclude that the district

court’s       finding      that      Alexander          voluntarily       consented    to     the

search of his residence was not clearly erroneous.                                   Viewed in

the light most favorable to the government, the evidence showed

that Alexander gave both written and verbal consent for officers

to search the residence and that such consent was voluntary.

The encounter took place in the defendant’s residence in the

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afternoon during daylight hours; almost all of the officers were

in plain clothes and the defendant knew some of them; none of

the officers brandished a weapon; the search lasted for only one

hour; the defendant cooperated and even volunteered information;

and the defendant was aware of his right to refuse consent as

shown by his initial refusal to turn over the key and the fact

that “he was aware that officers had to obtain his agreement to

[perform] the limited protective sweep before they could enter

his home.”      J.A. 92.     To the extent that Alexander asserts a new

challenge      to   the   evidence       recovered          from   his      residence      as

derivative of an illegal search of his vehicle, our review of

the record under the plain error standard reveals no basis for

reversal.      See United States v. Lynn, 592 F.3d 572, 577 (4th

Cir. 2010) (“[I]n the absence of proper preservation, plain-

error review applies.”).

       Alexander next challenges the sufficiency of the evidence.

This   Court    reviews    “de    novo    a       district    court's       denial    of    a

motion,    made     pursuant     to     Rule      29   of    the   Federal      Rules      of

Criminal Procedure, for judgment of acquittal.”                           United States

v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).                             In undertaking

such   a   review,    this      Court    is       “obliged    to     sustain    a    guilty

verdict if, viewing the evidence in the light most favorable to

the    prosecution,       the    verdict          is   supported       by    substantial

evidence.”          Id.   (internal       quotation          marks     omitted).           In

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determining           whether          the       evidence         is    substantial,           this   Court

“view[s]        the        evidence          in    the       light       most       favorable       to   the

government           and     inquire[s]            whether         there       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.”                   United States v. Foster, 507 F.3d 233, 245

(4th Cir. 2007).

          In        order        to        establish         possession             with       intent      to

distribute,           the    Government             had      to    prove       beyond      a    reasonable

doubt:         “(1) possession of the cocaine base; (2) knowledge of

this possession; and (3) intention to distribute the cocaine

base.”         See United States v. Burgos, 94 F.3d 849, 873 (4th Cir.

1996) (en banc).                 Possession can be actual or constructive--“[a]

defendant may have constructive possession of contraband even if

it   is    not       in     his       immediate       possession           or       control.”         United

States         v.    Shorter,              328     F.3d      167,        172     (4th       Cir.      2003).

“Constructive possession may be proved by demonstrating that the

defendant exercised, or had the power to exercise, dominion and

control        over       the     item.”           Burgos,         94    F.3d       at   873     (internal

quotation           marks        omitted).           Furthermore,               “[l]ike        conspiracy,

[c]onstructive               possession             may       be        established            by     either

circumstantial              or    direct          evidence.”            Id.     (internal        quotation

marks omitted).



                                                         5
       Alexander argues that the government failed to prove the

elements of         possession.           Our    review      of   the    record,      however,

leads us to conclude that the evidence was more than sufficient

to     establish         Alexander’s            possession        of         the     narcotics,

constructive or actual.

       Finally, Alexander challenges the procedural reasonableness

of     his     sentence.           This         Court       reviews      a     sentence      for

reasonableness under an abuse of discretion standard, Gall v.

United       States,      552      U.S.     38,        51    (2007),         which    requires

consideration          of        both     the         procedural         and       substantive

reasonableness of a sentence.                        An appellate court must ensure

that     the    district         court     did       not     commit      any       “significant

procedural error,” such as failing to properly calculate the

guidelines range, failing to consider the 18 U.S.C. § 3553(a)

factors,       failing      to    analyze       any     arguments       presented       by   the

parties, or failing to adequately explain the selected sentence.

Id. at 51.

       Alexander       concedes         that      the       district     court       correctly

calculated the advisory guideline range of 262 to 327 months.

However,       he     argues       that     the         district        court       failed   to

sufficiently explain the reasons for the sentence it imposed and

its rejection of Alexander’s request for a downward variance to

account for the guidelines’ disparity between offenses involving

cocaine      powder      and      those    involving          crack      cocaine.         “When

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rendering     a       sentence,      the    district         court        must     make     an

individualized         assessment        based    on     the     facts        presented,”

applying     the      “relevant      §    3553(a)      factors       to    the     specific

circumstances of the case before it.”                   United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and

emphasis omitted).          The court must also “state in open court the

particular        reasons      supporting        its     chosen       sentence,”          id.

(internal    quotation        marks      omitted),     but,    “[w]hen           imposing    a

sentence within the Guidelines, . . . the [court’s] explanation

need not be elaborate or lengthy because [G]uidelines sentences

themselves      are    in    many    ways   tailored      to   the        individual      and

reflect approximately two decades of close attention to federal

sentencing policy,” United States v. Hernandez, 603 F.3d 267,

271 (4th Cir. 2010) (internal quotation marks omitted).                             We have

carefully reviewed the record and conclude that the district

court’s     explanation        was       sufficient     to     show        that     it    had

considered Alexander’s argument and that it had a reasoned basis

for imposing the sentence that it selected.

      Accordingly, we affirm the judgment of the district court.

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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