                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4985



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JOSE JESUS MORA, a/k/a Jose Jesus Nuesslein, a/k/a Joe Mora,
a/k/a Jose Jesus Neusslein,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:07-cr-00062-RAJ)


Submitted:   April 4, 2008                 Decided:   April 25, 2008


Before MICHAEL and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Benjamin M. Mason, MASON, MASON, WALKER & HEDRICK, P.C., Newport
News, Virginia, for Appellant.   Chuck Rosenberg, United States
Attorney, Stephen W. Haynie, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Following a jury trial, Jose Jesus Mora was convicted of

three counts of being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (2000), and one

count of possession of a stolen firearm, in violation of 18 U.S.C.

§§ 922(j) and 924(a)(2) (2000).      The district court sentenced him

to a total of 84 months’ imprisonment, which was above the advisory

sentencing guideline range.    Mora appeals, challenging        the denial

of his motion for judgment of acquittal on two counts of the

§ 922(g)(1) offense, the imposition of an obstruction of justice

enhancement, the reasonableness of his sentence, and the imposition

of non-mandatory conditions of supervised release.              Finding no

reversible error, we affirm.



                                    I.

             We review de novo a district court’s decision to deny a

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

451 F.3d 209, 216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006).

Where, as here, the motion was based on a claim of insufficient

evidence, “[t]he verdict of a jury must be sustained if there is

substantial   evidence,   taking    the    view   most   favorable   to   the

Government, to support it.” Glasser v. United States, 315 U.S. 60,

80 (1942).    In evaluating the sufficiency of the evidence, this

court “do[es] not review the credibility of the witnesses and


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assume[s] the jury resolved all contradictions in the testimony in

favor of the government.”          United States v. Sun, 278 F.3d 302, 313

(4th Cir. 2002).       The court “must consider circumstantial as well

as direct evidence, and allow the government the benefit of all

reasonable inferences from the facts proven to those sought to be

established.”      United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982).

            In    order   to   convict      Mora   under   §    922(g)(1),    the

Government had to establish that (1) Mora had been previously

convicted of a felony, (2) Mora knowingly possessed the firearm,

and (3) the possession was in or affecting interstate or foreign

commerce.     See United States v. Gilbert, 430 F.3d 215, 218 (4th

Cir. 2005).       Mora stipulated to the first and third elements at

trial.   Viewing the evidence in the light most favorable to the

Government       and   allowing    the    Government   the     benefit   of   all

reasonable inferences therefrom, the evidence showed that Mora

traded a stolen Beretta shotgun to a friend in exchange for a Glock

17 pistol with the serial number AHM397US.                     On two separate

subsequent occasions, witnesses saw Mora wearing a Glock 17 pistol

in a holster on his hip.          We conclude that jurors could reasonably

convict Mora of the charged offense — possession of the Glock 17

pistol with the serial number AHM397US — on this evidence.




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                                            II.

              Mora also challenges the district court’s enhancement of

his sentencing guidelines offense level for obstruction of justice,

pursuant to § 3C1.1 of the U.S. Sentencing Guidelines Manual

(“USSG”).      Mora contends that his Sixth Amendment rights were

violated because the facts supporting the sentence enhancement were

not proven beyond a reasonable doubt to the jury.                           However,

pursuant to the remedial portion of United States v. Booker, 543

U.S. 220 (2005), district courts will continue to make decisions

about sentencing factors on the preponderance of the evidence,

taking into account that the resulting Guidelines range is advisory

only.     See United States v. Morris, 429 F.3d 65, 71-72 (4th Cir.

2005).

              As   to    the     district    court’s   obstruction    of    justice

determination, this court reviews findings of fact for clear error

and questions of law de novo.                United States v. Green, 436 F.3d

449,    456   (4th      Cir.),    cert.   denied,   126   S.   Ct.   2309    (2006).

Pursuant to § 3C1.1, a two-level enhancement for obstruction of

justice may be imposed if the defendant:

        willfully obstructed or impeded, or attempted to obstruct
        or impede, the administration of justice during the
        course of the investigation, prosecution, or sentencing
        of the instant offense of conviction, and the obstructive
        conduct related to the defendant’s offense of conviction
        . . . .

The evidence shows that after Mora had been arrested on the charged

offenses, he engaged in several telephone communications with his

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wife regarding the existence of an air pistol that was “nearly

identical” to the Glock 17 the witnesses claimed Mora possessed.*

Mora asked his wife to look at an internet site that sold the air

pistol and to ask the friend who had given him the Glock 17 if he

was correct that the real Glock 17 and the air pistol were

indistinguishable.   Mora asked his wife to purchase the air pistol

because it was “perfectly legal for a convicted felon to have one”

and it would be “exhibit one in [his] defense.”   Mora discussed at

length his desire to put “as much doubt in the jury’s mind as

possible” as to whether he committed the charged offenses.   Based

on this evidence, we find the district court’s factual findings

were not clearly erroneous and they adequately supported a two-

point enhancement for obstruction of justice.



                               III.

          Mora also challenges the reasonableness of his sentence,

including the district court’s determination that Mora’s Guidelines

criminal history category did not adequately represent his criminal

history or the likelihood that he would commit future offenses.

          Following United States v. Booker, 543 U.S. 220 (2005),

a district court must engage in a multi-step process at sentencing.

First, it must calculate the appropriate advisory Guidelines range.



     *
      Mora stipulated that the telephone conversations had been
lawfully recorded.

                               - 5 -
It must then consider the resulting range in conjunction with the

factors set forth in 18 U.S.C. § 3553(a) (2000) and determine an

appropriate sentence.     United States v. Davenport, 445 F.3d 366,

370 (4th Cir. 2006).

          Appellate review of a district court’s imposition of a

sentence is for abuse of discretion.     Gall v. United States, 128 S.

Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007).     The appellate court must first ensure

that the district court committed no procedural error, such as

“failing to calculate (or improperly calculating) the Guideline

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence--including an explanation for any deviation from the

Guideline range.”     Gall, 128 S. Ct. at 597.

          If there are no procedural errors, the appellate court

then considers the substantive reasonableness of the sentence. Id.

“Substantive reasonableness review entails taking into account the

totality of the circumstances, including the extent of any variance

from the Guidelines range.”     Pauley, 511 F.3d at 473.    While the

court may presume a sentence within the Guidelines range to be

reasonable, it may not presume a sentence outside the range to be

unreasonable.   Id.    Moreover, it must give due deference to the

district court’s decision that the § 3553(a) factors justify


                                 - 6 -
imposing     a    sentence    above    the     Guidelines         range   and   to   its

determination regarding the extent of any departure.                        Even if the

reviewing court would have reached a different sentencing result on

its own, this fact alone is insufficient to justify reversal of the

district court.       Id. at 474.

              Here,   the     district       court       followed     the     necessary

procedural steps in sentencing Mora, properly calculating the

Guidelines range and considering that recommendation in conjunction

with   the    §    3553(a)    factors.       In     so     doing,    it   granted    the

Government’s        motion     for     an      upward       departure        based   on

underrepresentation of Mora’s lengthy and diverse criminal history

and    the   likelihood      that    Mora    would       commit     future    offenses.

However, instead of readjusting Mora’s Guidelines range by a

particular amount, the district court decided to take those facts

into consideration with the § 3553(a) factors in determining its

sentence.        In light of the facts of this case, and the district

court’s      meaningful      articulation      of    its    consideration       of   the

§ 3553(a) factors and its bases for departing from the recommended

Guideline range, we find the district court’s decision to depart,

and the extent of the departure, reasonable.



                                         IV.

              Lastly, Mora challenges the district court’s imposition

of certain special conditions of supervised release.                      Because Mora


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failed to object to the conditions of supervised release in the

district court, this court reviews them for plain error.                  See

United States v. Alvarez, 478 F.3d 864, 866 (8th Cir. 2007).               To

meet the plain error standard:      (1) there must be an error; (2) the

error must be plain; and (3) the error must affect substantial

rights.    United States v. Olano, 507 U.S. 725, 732-34 (1993).            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.      Under this standard, we

find Mora has not met his burden of proving the district court

committed   plain   error   in   imposing   his    special   conditions    of

supervised release.



                                    V.

            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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