                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4073


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ANTWAIN DEVON COUNCIL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
District Judge. (5:07-cr-00199-FL-1)


Submitted:   January 12, 2012             Decided:   January 24, 2012


Before GREGORY, SHEDD, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant.      George E.B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Antwain Devon Council was convicted after a jury trial

of one count of possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924

(2006), and was sentenced as an armed career criminal to 235

months’     imprisonment.         On    appeal,       Council        challenges     his

conviction     and     sentence,       arguing     that        the     evidence       is

insufficient to support his conviction and that the district

court erred in denying his motion for a downward departure and

in sentencing him as an armed career criminal.                    We conclude that

the evidence is sufficient to support Council’s conviction and

that, although the district court’s denial of his motion for a

downward departure is not reviewable, resentencing in light of

United     States    v.    Simmons,    649     F.3d    237      (4th     Cir.      2011)

(en banc),    is     warranted.        Accordingly,       we      affirm     Council’s

conviction, vacate his sentence, and remand for resentencing.

            We review de novo the district court’s denial of a

Rule 29 motion for judgment of acquittal.                       United States v.

Green, 599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct.

271 (2010).        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

                                         2
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.            United

States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).

              To convict Council of being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1),

the Government was required to prove that he: (1) was previously

convicted     of    a     crime   punishable        by    a   term     of     imprisonment

exceeding     one    year;    (2)    knowingly       possessed,        transported,      or

received the firearm and ammunition; and (3) that the possession

was in or affecting commerce, because the firearm and ammunition

had    traveled      in     interstate       or     foreign     commerce.            United

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

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

                                             3
control over the item.”            Id. at 137 (internal quotation marks

omitted).

              Contrary to Council’s assertion, the evidence viewed

in the light most favorable to the Government establishes well

more   than    his    mere   proximity         to    the   firearm.       Indeed,    if

believed, it establishes direct contact between Council’s legs

and the firearm.          From this evidence, we conclude a rational

trier of fact could have concluded that Council possessed the

firearm the officers seized, thereby satisfying the possession

element of § 922(g)(1).            See, e.g., United States v. Johnson,

55 F.3d 976, 979 (4th Cir. 1995) (distinguishing United States

v. Blue, 957 F.2d 106 (4th Cir. 1992), and holding evidence of

constructive         possession     sufficient             to   support      § 922(g)

conviction     where    defendant       had     bodily     contact    with   a   “dark

object,”    was   observed       placing       his   arm    outside    the   driver’s

window of a vehicle and dropping the object, and where a search

of the area several minutes later uncovered a firearm).

              Next, Council argues that the district court erred in

refusing to grant his request for a downward departure under

U.S. Sentencing Guidelines Manual (“USSG”) §§ 4A1.3, p.s., and

5K2.0, p.s. (2007).          As Council recognizes, however, a district

court’s     refusal     to   depart      from        the    applicable    Guidelines

sentence does not provide a basis for appeal under 18 U.S.C.

§ 3742    (2006),      “unless    the    court       failed     to   understand     its

                                           4
authority to do so.”             United States v. Brewer, 520 F.3d 367, 371

(4th   Cir.     2008).          After       review      of    Council’s       briefs         and    the

record on appeal, we find no evidence that the district court

failed to understand its authority to depart.

               Finally, Council argues that the district court erred

in sentencing him as an armed career criminal because his prior

North Carolina state conviction for eluding arrest with a motor

vehicle is not a violent felony.                             The Armed Career Criminal

Act’s (“ACCA”) provision for an enhanced sentence — a statutory

range of fifteen years to life in prison — is applicable to a

defendant      who    violates         18      U.S.C.    § 922(g)(1)          and      has     “three

previous      convictions . . . for               a     violent       felony      or     a    serious

drug offense.”             18 U.S.C. § 924(e)(1); USSG § 4B1.4(a) & cmt.

n.1.      A     “violent         felony”         is     an         offense     punishable           by

imprisonment         for    a   term      exceeding          one    year     that      “has    as   an

element the use, attempted use, or threatened use of physical

force against the person of another,” or “is burglary, arson, or

extortion,      involves        use       of   explosives,          or     otherwise         involves

conduct       that    presents        a     serious      potential         risk     of       physical

injury to another.”             18 U.S.C. § 924(e)(2)(B)(i)-(ii).

               Council asserts that his prior state conviction was

not punishable by imprisonment for a term exceeding one year.

See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth

minimum       and    maximum       sentences            applicable          under       the     North

                                                  5
Carolina Structured Sentencing Act).                      Council, however, did not

raise this argument in the district court.                           Accordingly, our

review is for plain error.                 United States v. Hargrove, 625 F.3d

170, 184 (4th Cir. 2010), cert. denied, 132 S. Ct. 292 (2011).

To     establish         plain     error,       Council    must     demonstrate       that

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights.                      United States v. Olano, 507

U.S.    725,      732    (1993).      Even      if    Council    makes    this    showing,

however, we exercise our discretion to correct plain error only

if    it    “seriously      affects       the       fairness,    integrity   or     public

reputation of judicial proceedings.”                     United States v. Lynn, 592

F.3d       572,    577    (4th     Cir.     2010)       (internal    quotation       marks

omitted).         We conclude after review of the record that Council

has met his burden to establish plain error.

               Council’s prior state conviction is a Class H felony

under North Carolina law.                 Although the record does not contain

a copy of Council’s state judgment, it appears after review of

the    presentence        report    that     the      district    court   adopted     that

Council’s prior state record level was Level III.                                N.C. Gen.

Stat.       §§ 14-72.2(a),         (b),     14-127,       14-160(a),      14-223,     15A-

1340.14(a),        (b)(4)-(5),       (7),    (c)(3),      (d),    20-106,    90-90,    90-

95(a)(1), (3), (b)(1), (d)(4) (2009).                      Under the North Carolina

Structured Sentencing Act, with a prior record in Level III,

Council could only have been imprisoned for a term exceeding one

                                                6
year for his conviction for eluding arrest with a motor vehicle

if he received a sentence in the aggravated range.                               N.C. Gen.

Stat.     § 15A-1340.17(c)-(d).               The     present       record        does      not

indicate       that       Council       received      an      aggravated          sentence.

Therefore,     because       it    appears    that    the    conviction          was    not    a

proper    predicate        conviction       for     purposes       of   the      ACCA,      the

district court erred by sentencing Council as an armed career

criminal. 1

              We    also    hold    that     the    district       court’s       error      was

“plain.”      For    purposes      of   plain      error    review,        “‘[p]lain’         is

synonymous with ‘clear’ or, equivalently, ‘obvious.’”                                  Olano,

507 U.S. at 734.           “An error is plain where the law at the time

of trial was settled and clearly contrary to the law at the time

of   appeal.”         United       States    v.     Hughes,    401        F.3d    540,      547

(4th Cir.      2005)       (internal     quotation         marks    omitted).               When

Council    objected        to     his   classification        as     an    armed       career

criminal      in    the    district     court,      any    objection       based       on   his

sentence exposure for his prior state offense was foreclosed by

this court’s decision in United States v. Harp, 406 F.3d 242,

246 (4th Cir. 2005).               Because Simmons has now overruled Harp,

however, the district court’s error was plain.                              Simmons, 649

     1
       This determination, of course, implies no criticism of the
experienced    district     judge,    who    dutifully    applied
then-authoritative Circuit precedent at Council’s sentencing.



                                             7
F.3d at 241 (“[W]e now conclude that Harp no longer remains good

law.”).     The error also affected Council’s substantial rights.

Had Council not been classified as an armed career criminal, the

statutory maximum for his § 922(g) conviction would have been

ten years, barely more than half the length of the 235-month

sentence actually imposed.

            Because   Council      received      a   longer   sentence      than    he

could have received were it not for his classification as an

armed    career   criminal,   we    find    it   appropriate     to   notice       the

district    court’s   sentencing       error.         Accordingly,     we    affirm

Council’s    conviction,      vacate    his      sentence,     and    remand       for

resentencing under Simmons. 2           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 IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED




     2
       In light of our disposition, we need not address Council’s
arguments that his prior state conviction does not “otherwise
involve[] conduct that presents a serious potential risk of
physical injury to another.”



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