                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4294


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JAMAL KWAME HOSENDOVE,

                Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:12-cr-00093-H-1)


Submitted:   March 30, 2014                 Decided:   August 18, 2014


Before WILKINSON and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A jury convicted Jamal Hosendove as a felon in possession

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

The district court sentenced him to 62 months’ imprisonment.

       Hosendove contends that the evidence was insufficient to

support his conviction.            He also argues that the district court

erred in applying a four-level enhancement to his sentence for

possessing a firearm in connection with another felony offense.

For the reasons that follow, we affirm.



                                              I.

       On   appeal     from   a   criminal         conviction,    we    “construe       the

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

States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011).

                                              A.

       On December 10, 2011, Jacksonville, North Carolina police

responded to a 911 call reporting an alleged armed robbery at

the    Sandy   Run     apartment    complex.            The    caller    gave    a    brief

description of two assailants and alerted authorities that one

of    the   suspects    might     have    a       weapon.      Upon    arrival,      police

spotted      Marcus    Robinson     and       Jamal     Hosendove,       who    fit    the

description of the assailants provided by the 911 caller.                             After

a brief chase, both men were arrested.                       The police also found a

firearm nearby.

                                              2
                                                B.

        At trial, Anthony Stephens testified that Marcus Robinson

assaulted him in the hallway of the Sandy Run apartment complex

after       he   failed     to   pay     a   debt    owed    to    Robinson.       Stephens

noticed a second man standing behind him when he tried to get

away.       Stephens was unable to identify the second man because he

stood in a poorly lit area of the hallway.                            However, Stephens

did see a firearm tucked inside the man’s waistband, which he

described as silver with a black or brown handle.

       The       government       also       introduced      testimony      from    several

police       officers,       including        Officer       Ervin    and    his    partner,

Officer Smallwood, who were the first officers to respond to the

911 call. 1       Ervin saw two black men fitting the description given

by the 911 caller.               The two men, Robinson and Hosendove, were

walking away from the Sandy Run apartment complex as Ervin and

Smallwood arrived.               Ervin blew his horn to get their attention

and     Hosendove         immediately         began     running.           Ervin    pursued

Hosendove        in   his    police      cruiser      and    saw    Hosendove      remove   a

firearm from his waistband.                    Ervin yelled “He’s got a gun” to

inform his partner, who then immediately alerted dispatch.                             J.A.

119.        In what Ervin described as an effort to defend himself


        1
       Smallwood’s testimony was consistent with Ervin’s version
of their encounter with Robinson and Hosendove.



                                                3
against    what      he   perceived       to    be     a    deadly    threat,      Ervin     hit

Hosendove with the right front corner of his police cruiser.                                   At

that point, Hosendove threw the firearm on the ground, rolled

off the hood of the car, and continued running.                            After Hosendove

discarded the firearm, Ervin got out of his cruiser and pursued

Hosendove       on     foot.          Once          Robinson       and     Hosendove        were

apprehended, the officers located the discarded firearm, which

matched Stephens’s description of the weapon.

      During cross-examination, defense counsel asked Ervin if he

had   kicked    Hosendove       in    the      head       after    securing      him   on    the

ground.       Officer       Ervin    denied         it,    but     defense      counsel     then

introduced      a    recorded      video       of    the    arrest       that   contradicted

Ervin’s statement.

      After      the       close     of      the       government’s          case-in-chief,

Hosendove moved for a judgment of acquittal under Rule 29 of the

Federal Rules of Criminal Procedure.                        The district court denied

the   motion.         Hosendove’s         only       evidence      was    to    walk   before

members of the jury so that they could observe his stature.                                    He

then rested and renewed his motion for judgment of acquittal,

which   the     court      again     denied.          The    jury    returned      a   guilty

verdict    on   the       charge    of    being       a    felon    in    possession      of    a

firearm.




                                                4
                                            C.

         The   PSR       recommended    a   four-level      sentencing      enhancement

under    U.S.S.G.         § 2K2.1(b)(6)(B)        for    unlawful    possession       of    a

firearm in connection with another felony offense.                         According to

the PSR, Hosendove aided and abetted Robinson in his robbery of

Stephens. 2         Although Hosendove did not use the weapon during the

robbery,       the       probation     officer     concluded      that     it   had    the

“potential          of    facilitating      the    offense,”        thus   making      the

enhancement applicable.                J.A. 272.         Hosendove objected to the

four-level enhancement on the ground that he did not rob or

assault    Stephens.           He    also   contended      that     Stephens    did    not

identify him at trial as the second man.                          The district court

overruled the objection and applied the enhancement.

     The resulting Guidelines range for imprisonment was 63-78

months, based on a total offense level of 24 and a criminal

history category of III.               The district court initially indicated

that 78 months would be an appropriate sentence, but reduced the

sentence       to    62    months,     pursuant     to    U.S.S.G.    § 5G1.3(b),          to

account for the sixteen months Hosendove had served in state

prison on related charges.              This appeal followed.


     2
       The PRS noted that police interviewed Stephens at the
hospital, where he told them that Robinson stole his cell phone
and that the second man also struck him during the assault.
J.A. 258.



                                             5
                                          II.

     On appeal, Hosendove contends that (1) he was entitled to a

judgment of acquittal due to insufficient evidence, and (2) the

district court erred in enhancing his base offense level for

possession   of     a     firearm    in   connection         with    another   felony

offense.   We consider each issue in turn.

                                          A.

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

defendant’s motion for judgment of acquittal.                       Penniegraft, 641

F.3d at 571.        “In reviewing the sufficiency of the evidence

following a conviction, [we] construe the evidence in the light

most favorable to the government, assuming its credibility, and

drawing all favorable inferences from it, and will sustain the

jury's verdict if any rational trier of fact could have found

the essential elements of the crime charged beyond a reasonable

doubt.”    Id.    Furthermore, we “cannot make [our] own credibility

determinations      but      must   assume      that   the    jury     resolved     all

contradictions in testimony in favor of the Government.”                       Id. at

572 (internal quotation marks omitted).

      To convict Hosendove of being a felon in possession of a

firearm, the government had to prove three elements: (1) that

Hosendove knowingly possessed a firearm; (2) that Hosendove had

a prior felony conviction; and (3) that the firearm traveled in

interstate commerce.          United States v. Gallimore, 247 F.3d 134,

                                           6
136 (4th      Cir. 2001).           Hosendove stipulated to the second and

third   elements,      so     the    government     needed   to   prove    only     the

first--possession.

       Hosendove contends that he was entitled to a judgment of

acquittal because the government failed to prove the element of

possession     by    “credible”       evidence.       Appellant’s        Br.   at   14.

Hosendove argues that Ervin, the only witness to testify that

Hosendove possessed a firearm, was not credible because he was

impeached when he denied kicking Hosendove as he lay on the

ground.

       As our cases emphasize, however, credibility is determined

by the fact-finder.           Here, the jury was charged with evaluating

Ervin’s testimony and determining the amount of weight, if any,

to    give   it.      Ervin     testified     that    Hosendove    possessed        the

firearm,     and     the     jury     apparently     found     Ervin’s     testimony

credible despite defense counsel’s impeachment effort.

       Moreover,     other     evidence    corroborated        Ervin’s    testimony.

Minutes after responding to the 911 call, officers saw Hosendove

and   Robinson      leaving    the    Sandy   Run    complex    together.       After

Hosendove was arrested, police found a firearm in the area where

Hosendove ran.        And Smallwood and another officer testified as

to the location where the firearm was found.                       The jury also

heard Stephens describe the firearm he saw in the waistband of



                                          7
the second man, a description consistent with the firearm the

police found after Hosendove’s arrest.

     After   careful      review,    we       are    satisfied      that   there   was

sufficient evidence to support Hosendove’s conviction.                         Thus,

the district court correctly denied Hosendove’s motion for a

judgment of acquittal.

                                       B.

     Hosendove     next    complains          of     his    four-level     sentencing

enhancement.      The district court enhanced Hosendove’s sentence

because, it found, he had “used or possessed [the] firearm . . .

in   connection     with     another          felony        offense.”        U.S.S.G.

§ 2K2.1(b)(6)(B).

     On appeal, Hosendove argues only that the facts of this

case do not satisfy the elements of armed robbery under North

Carolina   law--the    “[]other      felony         offense”    suggested     by   the

probation officer. 3      See J.A. 271.             According to Hosendove, “the

government     presented    no      evidence         that    [he]    endangered    or

threatened Stephens’ life by the use of a gun,” as Hosendove

stood behind Stephens, and the gun never left his waistband.

Appellant’s Br. at 22.

     3
       The district court was rather less clear at the sentencing
hearing, referring simply to “the assault” before finding that
“there is sufficient preponderance of the evidence to allow the
enhancement for possession of a firearm in connection with
another felony offense.” J.A. 281.


                                          8
       Hosendove did not raise this specific issue at sentencing,

and thus we would normally review for plain error.                               We need not

wade       into     Hosendove’s         argument,       however,      because         the    PSR

supports        the     application      of     the   enhancement         on   the   basis    of

North Carolina common law robbery.                      See United States v. Smith,

395    F.3d       516,   519     (4th    Cir.    2005)     (“We     are    not   limited       to

evaluation         of    the   grounds        offered    by   the    district        court    to

support its decision, but may affirm on any grounds apparent

from the record.”).

       “Robbery at common law is the felonious taking of money or

goods      of     any    value    from    the     person      of   another,      or    in    his

presence, against his will, by violence or putting him in fear.”

State v. Moore, 183 S.E.2d 546, 547 (N.C. 1971).                                 And someone

“who aids or abets another in the commission of [that] crime is

equally guilty with that other person as [a] principal.”                                    State

v. Noffsinger, 528 S.E.2d 605, 610 (N.C. Ct. App. 2000).                                    Here,

the district court adopted the findings of the PSR as “credible

and reliable.”            J.A. 292.       According to the PSR, Robinson took

Stephens’s cell phone after he and a second man beat Stephens. 4


       4
       As noted earlier, Hosendove did not dispute the PSR’s
summary of how Stephens was assaulted and robbed; rather, he
denied any involvement in the offense.     But based on the
district court’s recollection of the evidence presented at
trial, the court resolved that specific objection against
Hosendove.



                                                 9
At trial, Stephens also testified that he tried to get away but

noticed the second man standing behind him, effectively blocking

his escape.          Thus, the record evidence supports a finding by a

preponderance of the evidence that Hosendove aided and abetted

the commission of common law robbery.

       Common        law    robbery       also       suffices      under     the    federal

Sentencing Guidelines.               The Guidelines enhancement requires a

finding of “another felony offense,” defined as “any Federal,

state, or local offense . . . punishable by imprisonment for a

term exceeding one year.”                 U.S.S.G. § 2K2.1 cmt. 14(C).               Common

law robbery is a Class G felony in North Carolina.                                 See N.C.

Gen. Stat. § 14-87.1.              Under North Carolina’s sentencing scheme,

the presumptive range for a Class G felony permits a sentence in

excess       of   one      year    for     even      the    lowest    criminal      history

category. 5           See    N.C.     Gen.        Stat.     § 15A-1340.17(c).           And

Hosendove’s          firearm      “facilitated,        or    had     the    potential    of

facilitating,” common law robbery.                    U.S.S.G. § 2K2.1 cmt. 14(A);

see also United States v. McKenzie-Gude, 671 F.3d 452, 464 (4th

Cir. 2011) (“This requirement is satisfied if the firearm had

some       purpose    or    effect       with    respect     to    the     other   offense,


       5
       As we explained in United States v. Kerr, 737 F.3d 33 (4th
Cir. 2013), we consider the presumptive range to establish the
maximum penalty for a North Carolina conviction where, as here,
no aggravating factors are in play.



                                                10
including   if     the    firearm   was     present   for      protection   or   to

embolden    the     actor.”    (internal      quotation        marks   omitted)).

Accordingly,      the    district   court    did   not   err    in   applying    the

sentencing enhancement.



                                      III.

     For the foregoing reasons, we affirm the district court’s

judgment.

                                                                         AFFIRMED




                                       11
