                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4899


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

FRANK BAILEY,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:07-cr-00559-RDB-1)


Submitted:    April 24, 2009                  Decided:   May 22, 2009


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas L.    Crowe, LAW OFFICES OF THOMAS L. CROWE, Baltimore,
Maryland,    for Appellant.     Rod J. Rosenstein, United States
Attorney,    Debra L. Dwyer, Assistant United States Attorney,
Baltimore,   Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            After    a   jury     trial,     Frank     Bailey     was    convicted    of

distribution       and   possession        with      the   intent       to   distribute

cocaine    base,    in   violation      of      21   U.S.C.      § 841(a)(1)      (2006)

(“count 1”), possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c) (2006)

(“count 2”), and possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006)

(“count 3”).       He was sentenced to 264 months in prison.                      Bailey

appeals, asserting that the district court erred by denying his

Fed. R. Crim. P. 29 motions for judgment of acquittal and his

motions for a mistrial.          Finding no error, we affirm.

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

Fed. R. Crim. P. 29 motion for judgment of acquittal.                               E.g.,

United    States    v.   Reid,    523   F.3d      310,     317   (4th    Cir.),     cert.

denied, 129 S. Ct. 663 (2008).                 In conducting this review, “the

verdict of the 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).

This court has defined “substantial evidence” as “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. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc).              We consider circumstantial as well

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

all reasonable inferences from the facts proven to those sought

to be established.            United States v. Harvey, 532 F.3d 326, 333

(4th Cir. 2008).

            In his sole challenge to count 1 and as part of his

challenges      as    to    counts     2    and     3,    Bailey      contends       that   the

evidence     is      insufficient          because       of    contradictions         in    the

testimony of the police officers concerning the location of the

undercover surveillance vehicle from which they observed Bailey

engaging   in     narcotics      transactions.                In     resolving   issues      of

substantial       evidence,      however,         this        court    does    not    reweigh

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).                           And after review

of the record, we conclude that there was sufficient evidence

from    which     a     jury    could        conclude          that     Bailey       knowingly

distributed       and      possessed       with   intent        to    distribute       cocaine

base.

            To establish a violation of 18 U.S.C. § 922(g)(1), the

Government was required prove beyond a reasonable doubt that:

(1) Bailey was a convicted felon; (2) he knowingly possessed the

firearm    and    ammunition;        and      (3)    the       firearm    and    ammunition

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traveled      in     interstate          commerce.                  See    United         States       v.

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).                                       As this court

held in Gallimore, 247 F.3d at 136-37, section 922(g)(1) does

not     require        proof       of      actual             or     exclusive            possession;

constructive or joint possession is sufficient.                                 The government

may   prove     constructive         possession               by    demonstrating              that   the

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

control over the item.                   Id. at 137 (quoting United States v.

Jackson,      124      F.3d       607,    610          (4th        Cir.   1997)).              Further,

constructive        possession           may        be        proved       by       circumstantial

evidence.       United States v. Laughman, 618 F.2d 1067, 1077 (4th

Cir. 1980).

              To convict Bailey of violating 18 U.S.C. § 924(c), the

government was required to prove that he (1) committed a drug

crime and (2) possessed a firearm in furtherance of that drug

crime.     18 U.S.C. § 924(c)(1)(A).                      In determining what evidence

is    sufficient       to     establish         a       violation         of    §        924(c),      the

statutory       term    “furtherance”              should           be    afforded        its      plain

meaning    of      “[t]he     act    of     furthering,              advancing,           or    helping

forward.”       United States v. Lomax, 293 F.3d 701, 705 (4th Cir.

2002)     (internal         citation       omitted;            alteration           in     original).

Therefore, “§ 924(c) requires the government to present evidence

indicating       that       the     possession            of        the    firearm         furthered,

advanced,     or    helped        forward      a       drug    trafficking          crime.”           Id.

                                                   4
Whether a firearm served such a purpose is a question of fact.

In Lomax, this court adopted a series of factors that might lead

a   reasonable     finder    of    fact    to      conclude       the    existence         of    a

connection between a defendant’s possession of a firearm and his

drug trafficking crime.            Id.    These factors include, but are not

limited    to:     the    type    of   drug       activity       being   conducted,          the

accessibility of the firearm, the type of weapon, whether the

weapon is stolen, the status of possession, whether the firearm

is loaded, its proximity to drugs or drug profits, and the time

and circumstances under which the gun is found.                          Id.        Possession

of a firearm in furtherance of a drug trafficking crime under

§ 924(c)    may    be     shown   through         either    actual       or    constructive

possession.        See United States v. Booker, 436 F.3d 238, 241

(D.C. Cir. 2006); United States v. Maldonado-Garcia, 446 F.3d

227, 231 (1st Cir. 2006).

             The    evidence       was    sufficient         to    convict          Bailey      on

counts 2 and 3.          Although Bailey was not in actual possession of

the loaded .22 caliber firearm seized from the living room of

the residence from which he was observed selling cocaine base,

the jury could infer his knowledge of and dominion and control

over the firearm, as it was found on the floor under a couch in

the residence’s living room, a room close to the residence’s

front    door.      The    evidence      was      also     sufficient         to    show     that

Bailey     constructively         possessed        the     .22    caliber          firearm      in

                                              5
furtherance of a drug trafficking crime.                    The evidence showed

that the firearm was loaded and located in the living room not

far from the entrance to the residence through which Bailey had

been observed exiting to sell cocaine base on the front porch.

The firearm, although located beneath the couch, was accessible

to Bailey, the only occupant of the residence and a convicted

felon   prohibited    from     possessing     the    firearm    or   ammunition.

Further, in light of the testimony from the government’s expert,

the jury could find that the firearm was of the type used by

drug traffickers for protection, and the firearm was found at

night under circumstances indicating that Bailey was involved in

drug distribution.         Accordingly, the district court did not err

in denying Bailey’s Rule 29 motions for judgment of acquittal.

            This court reviews the district court’s denial of a

motion for mistrial for abuse of discretion, United States v.

West, 877 F.2d 281, 287-88 (4th Cir. 1989), and will disturb a

district court’s ruling “only under the most extraordinary of

circumstances.”       United States v. Dorlouis, 107 F.3d 248, 257

(4th Cir. 1997).      “A defendant must show prejudice in order for

the court’s ruling to constitute an abuse of discretion, and no

prejudice    exists    if     the    jury    could    make    individual        guilt

determinations        by      following        the      court’s       cautionary

instructions.”        West,    877    F.2d    at     288.      Remarks     by    the

prosecutor in an opening statement will lead to reversal if “(1)

                                        6
the prosecutor’s remarks . . . [were] in fact . . . improper,

and   (2)    such     remarks     .     .     .    prejudicially         affected    the

defendant’s substantial rights so as to deprive the defendant of

a fair trial.”       United States v. Brockington, 849 F.2d 872, 875

(4th Cir. 1988) (internal citation marks omitted), overruled on

other grounds by Bailey v. United States, 516 U.S. 137 (1995).

             In this case, the district court denied a mistrial on

the basis of the government’s improper remark because the remark

was   made   during      an   opening       statement.          However,    the     court

instructed the jury that the opening statements of the attorneys

were not to be considered evidence, and jurors are presumed to

follow the instructions delivered by the district court, see

United   States     v.   Love,   134        F.3d   595,   603     (4th    Cir.    1998).

Moreover,    the    evidence     presented         at   trial    was   sufficient     to

sustain the jury’s verdict even without the improper remark in

the government’s opening statement.                     Accordingly, because the

government’s remark did not so prejudice Bailey’s substantial

rights as to deny him a fair trial, the district court did not

err in denying his requests for a mistrial.

             We therefore affirm the district court’s judgment.                       We

dispense     with    oral     argument       because      the     facts     and     legal

conclusions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                              AFFIRMED

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