                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4160



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


VAN ANTHONY ROSE,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-194)


Submitted:   January 10, 2007              Decided:   January 30, 2007


Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Camille M. Davidson, THE FULLER LAW FIRM, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Keith Cave, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Following a jury trial in the United States District Court for

the Western District of North Carolina, Van Anthony Rose (Rose) was

convicted   on   one   count   of   being   a   felon    in    possession   of

ammunition.      18 U.S.C. § 922(g), 924(e).            The district court

sentenced him to 360 months’ imprisonment.               Rose appeals his

conviction and sentence.       We affirm.

     On appeal, Rose first contends the district court erred in

denying his motion for judgment of acquittal. In this regard, Rose

specifically attacks the sufficiency of the evidence at trial to

prove beyond a reasonable doubt that he actually or constructively

possessed the ammunition at issue in this case.               Where, as here,

the defendant’s motion for acquittal was based on a claim of

insufficient evidence, we must sustain the jury’s verdict if there

was substantial evidence, viewed in the light most favorable to the

government, to support it.       United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc).      We do not review the credibility of

the witnesses and assume that the jury resolved any contradictions

in the testimony in favor of the government.        Id. at 862-63.      After

a careful review of the record, we find the jury’s verdict was

supported by substantial evidence.

     Second, Rose claims that he is entitled to a new trial by

reason of ineffective assistance of his trial counsel during

counsel’s cross-examination of government witness Tyisha Robinson.


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Because any ineffectiveness of Rose’s trial counsel during his

cross-examination of Tyisha Robinson does not conclusively appear

from the face of the record, Rose’s ineffective assistance of

counsel claim is not cognizable on direct appeal. United States v.

Baldovinos, 434 F.3d 233, 239 (4th Cir.) (ineffective assistance of

counsel claim not cognizable on direct appeal unless “lawyer’s

ineffectiveness   conclusively   appears   from    the    record”),   cert.

denied, 126 S. Ct. 1407 (2006).

       Finally, Rose seeks vacature of his sentence and a remand for

resentencing on the ground that the criteria the district court

relied upon in sentencing him to a term of imprisonment exceeding

by sixty-seven months the high-end of his otherwise properly

calculated   Sentencing   Guideline   range   of   235    to   293   months’

imprisonment was not presented to the jury.              Rose’s sentencing

challenge is without merit. We have previously set forth the steps

that a district court should follow in sentencing a defendant post-

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

Moreland, 437 F.3d 424, 432-33 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006); United States v. Green, 436 F.3d 449 (4th Cir.), cert.

denied, 126 S. Ct. 2309 (2006).

       First, a district court must “correctly determine, after

making appropriate findings of fact, the applicable guideline

range.”    Moreland, 437 F.3d at 432; see also Green, 436 F.3d at

456.


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      Next, the court must determine whether a sentence within
      that range serves the factors set forth in § 3553(a) and,
      if not, select a sentence within statutory limits that
      does serve those factors.     In doing so, the district
      court should first look to whether a departure is
      appropriate based on the Guidelines Manual or relevant
      case law. . . . If an appropriate basis for departure
      exists, the district court may depart. If the resulting
      departure range still does not serve the factors set
      forth in § 3553(a), the court may then elect to impose a
      non-guideline sentence (a “variance sentence”).       The
      district court must articulate the reasons for the
      sentence imposed, particularly explaining any departure
      or variance from the guideline range. The explanation of
      a variance sentence must be tied to the factors set forth
      in § 3553(a) and must be accompanied by findings of fact
      as necessary. The district court need not discuss each
      factor set forth in § 3553(a) in checklist fashion; it is
      enough to calculate the range accurately and explain why
      (if the sentence lies outside it) this defendant deserves
      more or less.

Moreland, 437 F.3d at 432-33 (internal quotation marks, alteration

marks, and citations omitted).              “Our task in reviewing a post-

Booker federal sentence is to determine whether the sentence is

within the statutorily prescribed range and is reasonable.” Id. at

433   (internal     quotation    marks      omitted).      In   reviewing     the

reasonableness of a variance sentence such as we have here, we

“must consider–-in light of the factors enumerated in § 3553(a) and

any relevant guideline provisions--whether the district court acted

reasonably   with    respect    to    (1)   the   imposition    of    a   variance

sentence, and (2) the extent of the variance.”              Id. at 433-34.

      After carefully reviewing the record in this case, we conclude

the district court fully complied with our post-Booker sentencing

analysis.     Moreover,     we       conclude     the   district     court   acted


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reasonably with respect to the imposition of the variance and its

extent.

     In conclusion, we affirm Rose’s conviction and sentence.   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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