                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-4903


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY THOMPSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:09-cr-00081-WDQ-1)


Submitted:   February 14, 2011             Decided:   March 17, 2011


Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Paula Xinis, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Christopher Mason,
Special Assistant United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 A     federal     jury     convicted            Anthony       Thompson     of

possession of a firearm after having previously been convicted

of    a        crime    punishable     by   a       term       exceeding       one   year   of

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

district court sentenced Thompson to 235 months of imprisonment

and he now appeals.              For the reasons that follow, we affirm.

                 Thompson     first    argues         that       an    expert’s      testimony

regarding         the    interstate    nexus         of    the    firearm      he    possessed

violated the Confrontation Clause of the Sixth Amendment because

it was based on inadmissible hearsay.                          “The Sixth Amendment to

the United States Constitution, made applicable to the States

via   the        Fourteenth      Amendment,     .     .    .   provides     that     [i]n   all

criminal prosecutions, the accused shall enjoy the right . . .

to        be      confronted       with       the         witnesses        against      him.”

Melendez-Diaz v.           Massachusetts,           129   S.     Ct.   2527,    2531    (2009)

(internal quotation marks and citation omitted).                                Therefore, a

witness’ testimony is “inadmissible unless the witness appears

at trial or, if the witness is unavailable, the defendant had a

prior          opportunity       for   cross-examination.”                  Id.       (quoting

Crawford v. Washington, 541 U.S. 36, 51, 54 (2004)) (internal

quotation marks omitted).

                 However, while “Crawford forbids the introduction of

testimonial hearsay as evidence in itself, . . . it in no way

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prevents       expert      witnesses           from       offering        their       independent

judgments       merely     because       those        judgments        were      in    some     part

informed by their exposure to otherwise inadmissible evidence.”

United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009).                                         An

expert’s reliance on testimonial hearsay “only becomes a problem

where the witness is used as little more than a conduit or

transmitter         for   testimonial          hearsay,          rather    than       as   a    true

expert whose considered opinion sheds light on some specialized

factual situation.”               Id.     The test is whether the expert is

giving     an       independent         judgment          or      “merely        acting        as    a

transmitter for testimonial hearsay.”                            Id.      “As long as he is

applying his training and experience to the sources before him

and reaching an independent judgment, there will typically be no

Crawford problem.”              Id.     We have thoroughly reviewed the record

and conclude that the expert witness’ testimony was not used as

a mere conduit for testimonial hearsay.                           Therefore, the expert’s

testimony did not violate Thompson’s Sixth Amendment rights.

               Thompson         next    argues        that       there     was     insufficient

evidence       to   support       the    conviction.              This     court       reviews       a

district       court’s      decision      to     deny        a   Rule     29     motion    for       a

judgment of acquittal de novo.                   United States v. Smith, 451 F.3d

209,     216    (4th      Cir.        2006).          A    defendant        challenging             the

sufficiency         of    the    evidence       faces       a    heavy     burden.         United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                                             The

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verdict of a jury must be sustained “if, viewing the evidence in

the   light    most   favorable     to    the    prosecution,           the    verdict    is

supported by ‘substantial evidence.’”                   Smith, 451 F.3d at 216

(citations omitted).            Substantial evidence is “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.”         Id. (internal quotation marks and citation

omitted).     Furthermore,       “[t]he    jury,      not   the    reviewing        court,

weighs   the     credibility       of     the    evidence       and       resolves       any

conflicts in the evidence presented.”                 Beidler, 110 F.3d at 1067

(internal quotation marks and citation omitted).                          “Reversal for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.”                Id. (internal quotation marks

and citation omitted).

              Moreover,    to     establish      a    violation          of    18   U.S.C.

§ 922(g)(1),      the     Government       was       required      to     prove      that:

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

firearm; and (3) the firearm traveled in interstate commerce.

See United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.

2001).   Our review of the record compels us to conclude that the

Government presented substantial evidence from which the jury

could conclude that Thompson was guilty of the charged offense.

              Finally,     Thompson       argues       that       the     sentence        is

procedurally      and     substantively         unreasonable.             We    review     a

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sentence    for       reasonableness,        applying    an    abuse    of    discretion

standard.       Gall v. United States, 552 U.S. 38, 51 (2007); see

also United States v. Layton, 564 F.3d 330, 335 (4th Cir.),

cert. denied, 130 S. Ct. 290 (2009).                         In so doing, we first

examine     the       sentence      for     “significant        procedural         error,”

including “failing to calculate (or improperly calculating) the

[g]uidelines         range,      treating    the      [g]uidelines     as     mandatory,

failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,

selecting       a    sentence      based    on     clearly     erroneous      facts,        or

failing    to       adequately     explain    the     chosen    sentence      .    .    .   .”

Gall,    128    S.    Ct.   at    597.       Finally,    we    then    “‘consider           the

substantive reasonableness of the sentence imposed.’”                                  United

States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting

Gall, 552 U.S. at 51).               This court presumes on appeal that a

sentence within a properly calculated advisory guidelines range

is reasonable.          United States v. Allen, 491 F.3d 178, 193 (4th

Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56

(2007)     (upholding         presumption        of   reasonableness         for       within

guidelines sentence).

               In imposing a sentence, a district court must conduct

an “individualized assessment” of the particular facts of every

sentence, whether the court imposes a sentence above, below, or

within the guidelines range.                United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009).                 In addition, “[w]here [the parties]

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present[] nonfrivolous reasons for imposing a . . . sentence

[outside the advisory guidelines range,] . . . a district judge

should   address     the    party’s     arguments         and   explain   why    he     has

rejected those arguments.”             Id. at 328 (internal quotation marks

and citation omitted).            “By drawing arguments from § 3553 for a

sentence different than the one ultimately imposed, an aggrieved

party    sufficiently        alerts          the        district      court     of      its

responsibility         to    render        an          individualized        explanation

addressing     those    arguments,       and       thus     preserves     its    claim.”

United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).

            When the claim is preserved, this court reviews the

issue for an abuse of discretion.                       Id. at 576, 579.         If the

district court abused its discretion, this court will “reverse

unless . . . the error was harmless.”                      Id. at 576.        Where the

district court commits error, the government bears the burden of

demonstrating       that    the    error         was    harmless.       Id.     at     585.

Thompson argues that the district court failed to conduct an

individualized assessment of the case and the § 3553(a) factors

and   failed   to    respond      to   his       sentencing     arguments.           Having

reviewed the record, however, we are not persuaded the district

court erred.        Moreover, we are satisfied that even if error

occurred,    it   was   harmless.        Finally,          Thompson    has    failed     to

rebut the presumption of reasonableness this court applies to

his within-guidelines sentence.

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            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 in the decisional

process.

                                                                  AFFIRMED




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