                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4320


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JERMAINE RODNEY WILLIAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:15-cr-00175-JAG-1)


Submitted:   November 30, 2016            Decided:   December 15, 2016


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory R. Sheldon, BAIN SHELDON, PLC, Richmond, Virginia, for
Appellant.   Dana J. Boente, United States Attorney, Olivia L.
Norman, Assistant United States Attorney, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Following     a      two-day        trial,             a    federal     jury    convicted

Jermaine Rodney Williams of Count 1 of a three-count indictment,

which charged Williams with being a felon in possession of a

firearm,    in   violation          of   18    U.S.C.            § 922(g)(1)    (2012).       The

facts underlying this charge occurred on December 21, 2013.                                   The

district court subsequently sentenced Williams to 95 months in

prison     and   imposed        a     3-year           term       of     supervised     release.

Williams     timely     appealed            and        raises          four   issue     for   our

consideration.        As set forth below, we conclude these arguments

do not garner Williams any relief.                      Accordingly, we affirm.

                                               I.

      Williams’ first assignment of error pertains to the denial

of his pretrial motion to dismiss the indictment.                                 This motion

was   predicated      on    a       prior      dismissal            order     entered    by   the

district    court     as    related           to       the       first    indictment     against

Williams.     In that order, the court found that the prosecution’s

failure to bring Williams to trial within 70 days of indictment

violated Williams’ rights under the Speedy Trial Act, see 18

U.S.C. §§ 3161–3174 (2012), and that the delay was attributable

to the Government and not excusable.                             The court ordered the case

dismissed, but did not specify whether the dismissal was with or

without prejudice.



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      The   Government   thereafter           sought   and     obtained      a    second

indictment—the indictment underlying the criminal judgment that

is before us on appeal—in which the Government charged Williams

with three crimes, two of which were the subject of the first

indictment.      This    second    criminal        case       was   assigned       to   a

different district judge.         Williams moved to dismiss the second

indictment,   arguing    that     the    prior     dismissal        order    was    with

prejudice,    thus   precluding         the     Government      from     reindicting

Williams on these charges.

      The district court held a hearing on the motion to dismiss

at which it heard from both the prosecutor and Williams’ new

defense attorney and received supporting evidence.                          The court

thereafter    analyzed     the    factors        set    forth       in      18    U.S.C.

§ 3162(a)(2), which include “the seriousness of the offense; the

facts and circumstances of the case which led to the dismissal;

and the impact of a reprosecution on the administration of this

chapter and on the administration of justice,” * and ruled that

the   first    dismissal    order        reflected        a    dismissal         without

prejudice.    Williams appeals this ruling, arguing that the court




      *Although not dispositive, “the presence or absence of
prejudice to the defendant” is also “relevant for a district
court’s consideration,” and may be considered in conjunction
with the third factor.  United States v. Taylor, 487 U.S. 326,
334 (1988).



                                         3
erred in so finding that the first dismissal order was without

prejudice.

       The    Speedy     Trial        Act    provides       that,      if    the    defendant’s

trial    does      not   begin        within       70    days    and     the      delay       is   not

excludable, the district court “shall” dismiss the indictment

with or without prejudice on motion of the defendant.                                   18 U.S.C.

§ 3162(a)(2); United States v. Henry, 538 F.3d 300, 304 (4th

Cir.    2008).         Neither       type    of        dismissal    is      “the    presumptive

remedy    for      a   Speedy        Trial   Act        violation,”       and      in    resolving

whether       to   dismiss       a    case     with       or     without       prejudice,          the

district court must consider the specific factors set forth in

§ 3162(a)(2).          Taylor, 487 U.S. at 334.

       The Supreme Court has instructed that, when reviewing a

district      court’s     ruling        on     a       Speedy    Trial      Act    claim,          “the

district court’s judgment of how opposing considerations balance

should not lightly be disturbed” so long as the court “properly

considered” the statutory factors and did not make any clear

error in its relevant factual findings.                           Id. at 337.           Here, the

record       confirms     that       the     court,       in    interpreting            the    order

dismissing         the    first        indictment,             properly      considered            the

statutory factors in 18 U.S.C. § 3162(a)(2) and did not commit

clear error in its factual findings related to these factors.

We thus affirm the denial of Williams’ motion to dismiss the

second indictment on speedy trial grounds.

                                                   4
                                             II.

     Williams next maintains that the Government’s evidence on

the count of conviction was legally insufficient as it did not

adequately prove Williams’ possession, actual or constructive,

of a firearm.       We disagree.

     We review the denial of a Fed. R. Crim. P. 29 motion de

novo.    See United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

2005).       When    a   Rule    29   motion       was   based    on    a   claim    of

insufficient evidence, the jury’s verdict must be sustained “if

there is substantial evidence, taking the view most favorable to

the Government, to support it.”               United States v. Abu Ali, 528

F.3d 210, 244 (4th Cir. 2008) (alteration and internal quotation

marks    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.”            United States v. King, 628 F.3d 693, 700

(4th Cir. 2011) (internal quotation marks omitted).

     To convict a defendant under 18 U.S.C. § 922(g)(1), the

Government must establish that:              (1) the defendant was a felon;

(2) he voluntarily and intentionally possessed a firearm; and

(3) the firearm traveled in interstate commerce.                       United States

v. Reed, 780 F.3d 260, 271 (4th Cir.), cert. denied, 136 S. Ct.

167 (2015).         The trial transcript reveals that the Government



                                         5
produced sufficient evidence to establish each element of this

offense.

     First, Williams stipulated that he had been convicted of a

felony    when    the   underlying     events         occurred.            Uncontradicted

testimony    of    Special   Agent    Joseph         Bradley        of    the     Bureau    of

Alcohol,     Tobacco,      Firearms       and     Explosives             established        an

interstate       nexus.        Finally,         Officer        C.        Byerly     of     the

Chesterfield County Police Department, who was driving the first

of several police vehicles pursuing Williams on December 21,

2013, observed Williams extend his arm out of his car window and

drop a firearm to the street.             Williams was the lone occupant of

this vehicle.       Byerly and another officer recovered the firearm

shortly    after    Williams    was   apprehended          a    few       moments    later.

Taking     the    evidence     in   the       light     most        favorable       to     the

Government and resolving all evidentiary contradictions in the

Government’s favor, see United States v. Taylor, 659 F.3d 339,

343 (4th Cir. 2011), this testimony is sufficient to sustain the

jury’s guilty verdict, see United States v. Wilson, 115 F.3d

1185, 1190 (4th Cir. 1997).

                                              III.

     Williams asserts two challenges to his 95-month sentence.

First,     Williams       assigns     error       to      the       district        court’s

application of U.S. Sentencing Guidelines Manual § 3C1.2 (2015),

which resulted in a two-level increase in Williams’ base offense

                                          6
level.          In    evaluating        the        district     court’s       Guidelines

calculations, this court reviews the district court’s findings

for   clear     error   and     its    legal      conclusions      de    novo.     United

States v. White, 771 F.3d 225, 235 (4th Cir. 2014).

      Section 3C1.2 provides for a two-level enhancement “[i]f

the defendant recklessly created a substantial risk of death or

serious bodily injury to another person in the course of fleeing

from a law enforcement officer.”                   This enhancement “is intended

to capture behavior that could be viewed as an obstruction of

justice, and thus requires that a defendant be aware that he or

she is fleeing from a law enforcement officer.”                           United States

v. Shell, 789 F.3d 335, 347 (4th Cir. 2015) (internal quotation

marks    omitted).           “[A]cts   are        considered    reckless      when   [the

defendant] was aware of the risk created by his conduct and the

risk was of such a nature and degree that to disregard that risk

constituted a gross deviation from the standard of care that a

reasonable person would exercise in such a situation.”                             United

States v. Carter, 601 F.3d 252, 255 (4th Cir. 2010) (internal

quotation marks omitted).

      In overruling Williams’ objection to this enhancement, the

district court ruled that it was properly applied because, on

December      21,    2013,    Williams    led       the   police    on    a   high-speed

chase,     on   a    two-lane,        business       access    road,      during     which

Williams’ top speed approached 70 mph.                        The court opined that

                                              7
traveling at this excessive rate of speed on such a small road,

which,   the     court        observed,        was        very    close     to      a   main

thoroughfare, created a substantial risk of death or serious

bodily injury to any of the drivers, including Williams.                                     We

readily conclude that these facts, which were established by the

officers’   trial   testimony,         support        the    enhancement          and   belie

Williams’   contention        that    he   engaged         only    in     “mere    flight,”

which would be insufficient to warrant the enhancement.                             See id.

We therefore conclude that the district court did not commit

clear error in applying this enhancement.

      Finally,    Williams        maintains          that,        “pursuant        to   USSG

§ 4A1.3(b)(1), a criminal history category of VI substantially

over-represented        the    seriousness           of    his    criminal        history.”

(Appellant’s Br. at 19).             Williams goes on to particularize his

various criminal convictions, and the points assigned thereto,

and   asserts    that    the    scored     “convictions            for    driving       on   a

suspended operators’ license, marijuana possession and assault

and   battery    over-represent        the      seriousness          of    his     criminal

history.”   (Id. at 20).

      To the extent that Williams’ argument could be construed as

a challenge to the substantive reasonableness of his sentence,

we find that he fails to rebut the presumption of reasonableness

afforded his within-Guidelines sentence.                         See United States v.



                                           8
Louthian,    756    F.3d    295,     306     (4th   Cir.      2014)   (providing

standard).

     For    these   reasons,    we    affirm    both    the   district   court’s

order   denying     Williams’       motion     to   dismiss     the   indictment

underlying this prosecution and the criminal judgment imposed

following    the    jury   trial.      We    dispense    with    oral    argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.



                                                                         AFFIRMED




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