                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5131


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TOMAS CHARLES SCOTT,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Raymond A. Jackson,
District Judge. (4:11-cr-00038-RAJ-TEM-1)


Submitted:   July 30, 2012                 Decided:   August 21, 2012


Before SHEDD, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Patrick L. Bryant,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant.   Neil H. MacBride, United States Attorney, Kealin
Marcel Culbreath, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tomas Charles Scott pled guilty to possession of a

firearm    and   ammunition        by    a    convicted        felon,      see     18    U.S.C.

§ 922(g)(1) (2006), and was sentenced below the Guidelines range

to a term of seventy-two months’ imprisonment.                              Scott appeals

his    sentence,      contending         that     the      district        court       used    an

incorrect   legal      standard      to      determine      that      he    constructively

possessed     firearms       in    addition       to     the    one      charged        in    the

indictment,      and       that    the       court      clearly       erred       in     making

enhancements     for       possession        of   at    least     three      firearms         and

possession of a firearm with a large capacity magazine under

U.S.    Sentencing         Guidelines        Manual        § 2K2.1(a)(3),          (b)(1)(A)

(2010).    We affirm.

            Late in the evening on December 31, 2010, in Newport

News, Virginia, officers at a police station heard shots being

fired and ran outside to see two men running toward an apartment

complex.    One of the men, later determined to be Tomas Charles

Scott, was wearing all black; the other had on a white shirt.

Soon after losing sight of the men, the officers saw four people

getting    out   of    a    car,   including         the    two    men     they     had       seen

running away.

            The passenger in the front of the car was Scott.                                   He

had a loaded eight-round magazine in his pocket.                              In the front

passenger area of the car where Scott had been sitting, the

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police found:     (1) a 9mm Taurus model Luger pistol on the side

floorboard; (2) an empty but warm to the touch .40 caliber S&W

pistol between the seat and the door; and (3) a stolen, loaded

.45 caliber H&K pistol on the front passenger side floorboard

leaning against a bottle of alcohol.          Also recovered from the

front passenger side floorboard was a 9mm magazine with a 17-

round   capacity,   seventeen     9mm    cartridges,   and   two    empty

magazines.      In the trunk of the car was a stolen sawed-off

shotgun, as well as boxes of buckshot, .45 caliber cartridges,

and .40 caliber cartridges.      Ten .40 caliber shell casings and a

black glove were found on the sidewalk in the area where the

gunshots were heard.

           After Scott was arrested, he admitted possessing the

H&K pistol and stated that he knew the other guns were in the

car and that his DNA would probably be found on them.              Scott’s

cell phone contained pictures, taken in December 2010, of both

firearms and Scott holding firearms, including some of the guns

recovered from the car.         A picture dated December 31, 2010,

showed the stolen firearms and bottles of alcohol that were in

the car.     Scott made the following statement:        “I like guns,

whenever I see one, I hold it.          I take pictures of every gun I

see.”   In addition, one of the other persons in the car with

Scott reported seeing him with the H&K firearm and seeing him



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shoot the .40 caliber firearm, a shotgun, and another gun not

found in the car.

            Scott had a prior felony conviction for distributing

cocaine.       He was later charged in federal court with possessing

the   H&K   pistol    and    the    eight-round          magazine     he     had    in    his

pocket.     In July 2011, Scott pled guilty and acknowledged most

of the above facts in a Stipulated Statement of Facts.

            In    sentencing       Scott,    the       district     court    determined,

over Scott’s objection, that his offense involved the Taurus

Luger, a semiautomatic firearm with a large capacity (more than

15 rounds) and that he had constructively possessed three or

more firearms, that is, all three firearms found in the front

passenger      area   of    the    car.         USSG    § 2K2.1(a)(3),        (b)(1)(A).

Scott maintained that he had possessed only the H&K pistol he

pled guilty to possessing.

            On appeal, Scott argues that the district court found,

at most, that he had knowledge of the other weapons and was

within reach of them, but that such evidence was insufficient to

prove constructive possession, even by a preponderance of the

evidence.

            We    review    a     sentence      under     a    deferential     abuse       of

discretion standard, which includes consideration of both the

procedural and substantive reasonableness of the sentence.                               Gall

v.    United     States,    552    U.S.     38,    41,        51   (2007).         Improper

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calculation of the advisory Guidelines range is a significant

procedural error.         Id.    The sentencing court’s interpretation of

a Guideline is reviewed de novo.                          United States v. Montgomery,

262 F.3d 233, 250 (4th Cir. 2001).

              “[A] person may have constructive possession over [an

item] if he has ownership, dominion, or control over [the item]

or     the    premises     or    vehicle             in    which       the   contraband      was

concealed.”          United States v. Herder, 594 F.3d 352, 358 (4th

Cir.),       cert.    denied,    130        S.       Ct.       3440    (2010).       Moreover,

“[c]onstructive          possession          may          be    established        by      either

circumstantial or direct evidence[,]” and “a fact finder may

properly consider the totality of the circumstances[.]”                                    (Id.)

(internal citations omitted).

              Contrary to Scott’s contention, the district court did

not find that mere proximity and knowledge were enough to prove

constructive possession.               The court found that a person in the

car would have constructive possession of any weapon he could

reach and control.          The court found that Scott had the ability

to   control     the     weapons       in    the          front       passenger    area,    thus

implicitly finding that he had dominion or control over them, as

well     as    noting     that    he        had       previously         held     them,     i.e.,

controlled them, as proved by the pictures on his cell phone.

Thus, Scott’s claim that the district court applied the wrong

legal standard is without merit.

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            Because the district court applied the correct legal

standard and the evidence before the court was sufficient to

establish    by    a   preponderance     of    the   evidence    that   Scott   had

dominion or control over all three guns in the front passenger

area of the car, we conclude that the district court did not

clearly err in applying the enhanced base offense level of 22

under      § 2K2.1(a)(3)        and      the     2-level        increase      under

§ 2K2.1(b)(1)(A).

            We therefore affirm the district court’s judgment.                  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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