                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4430



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RICARDO M. SUGGS, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:06-cr-00027)


Submitted:   January 30, 2008          Decided:     February 19, 2008


Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew M. Robinson, ROBINSON & BRANDT, PSC, Cincinnati, Ohio, for
Appellant.   Sharon L. Potter, United States Attorney, David J.
Perri, Assistant United States Attorney, Wheeling, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Ricardo M. Suggs, Jr. was indicted on one count of

possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1)

(2000).    A superseding indictment was later returned charging him

with: the § 922(g)(1) offense (Count One); witness tampering with

intent to kill, 18 U.S.C. § 1512(a)(1)(A) (2000) (Count Two);

witness tampering by use of force, 18 U.S.C. § 1512(a)(2)(A) (2000)

(Count Three); and witness tampering through corrupt persuasion, 18

U.S.C. § 1512(b)(1) (2000) (Count Four).                   The district court

granted Suggs’ motion to bifurcate.              At his first trial, Suggs was

convicted on Count One.          At the subsequent trial, he was convicted

on Counts Two and Three and acquitted on Count Four.                       He was

sentenced to 324 months in prison.               We affirm.



                                           I

               Suggs first contends that the evidence was insufficient

to convict him on any of the three counts.                     When addressing a

challenge to the sufficiency of the evidence, we consider whether

the evidence, when viewed in the light most favorable to the

Government, was sufficient for a rational trier of fact to have

found the essential elements of the crime beyond a reasonable

doubt.    Glasser v. United States, 315 U.S. 60, 80 (1942); United

States    v.    Stewart,   256    F.3d    231,    250   (4th   Cir.   2001).   If

substantial evidence exists to support a verdict, the verdict must


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be sustained.    Glasser, 315 U.S. at 80.         We do not review the

credibility of witnesses, and we assume 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).

                          Firearm Conviction

            To establish a violation of § 922(g)(1), the Government

must prove that: the defendant was a convicted felon; he knowingly

possessed the firearm; and the firearm traveled in interstate

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

2001); United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995)

(en   banc).1   Here,    the   parties    stipulated   that   Suggs   was   a

convicted felon and that the firearm, a Phoenix Arms .22 handgun,

had the requisite interstate commerce nexus.

            The disputed issue, therefore, is possession, which may

be actual or constructive. Gallimore, 247 F.3d at 136-37. Timothy

Sears testified that on March 1, 2006, he and Salih el Mohammad got

into a car with Suggs and Blair Thompson.              Suggs was driving,

Thompson was in the front passenger seat, and Mohammad and Sears

were in the back seat.    Sears observed both Suggs and Thompson with

handguns, “waving them around jokingly.”           At one point, Suggs

placed his gun near Thompson’s face.




      1
      Contrary to Suggs’ argument on appeal, physical evidence
linking the defendant to the firearm is not necessary to convict
under 18 U.S.C. § 922(g)(1).

                                  - 3 -
             Officer Steven Falbo, of the Weirton, West Virginia,

police   department,      testified       that       on    March      1,      2006,    at

approximately 3:30 a.m., he initiated a traffic stop of the car

Suggs was driving.        Suggs was the sole occupant of the car.

Sergeant Bruce Marshall testified that he retrieved a Phoenix Arms

.22 handgun from under the driver’s seat of the vehicle.

             Based on the above testimony, we find the evidence

sufficient to establish possession.            Not only did Sears’ testimony

establish     actual   possession,        but        the    officers’         testimony

established that Suggs constructively possessed the gun.                              See

United   States   v.   Blue,     957    F.2d     106,      107    (4th     Cir.   1992)

(constructive possession of contraband exists if defendant has

ownership, dominion, or control over the contraband or premises or

vehicle in which contraband discovered).

                            Witness Tampering

             The Government’s theory at the second trial was that,

when Suggs learned that Sears had given a written statement to the

police and had been subpoenaed to testify at trial on Count One,

Suggs resolved to kill Sears before he could testify.                          Thus, on

July   21,   2006--five   days    before       the    trial      on   Count    One    was

originally scheduled to begin--Suggs broke into Sears’ home, where

he shot both Sears and Sears’ mother, Rhonda West, intending to

kill Sears.




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     To establish a violation of 18 U.S.C. § 1512(a)(1)(A), the

United States had to prove that Suggs knowingly attempted to kill

Sears and that he did so in order to prevent Sears’ attendance or

testimony at the first trial.    See United States v. Rose, 362 F.3d

1059, 1067 (8th Cir. 2004).   To establish a violation of 18 U.S.C.

§ 1512(a)(1)(B), the United States had to prove that Suggs used the

threat of physical force with the intent of curtailing Sears’

involvement in the prosecution.    See United States v. England, 507

F.3d 581, 588 (7th Cir. 2007).

            Sears testified that on July 5, 2006, he ran into Suggs

at a bar.     It was clear to Sears that Suggs knew that Sears had

made a statement to the police concerning the firearm offense. The

men argued.   Suggs insisted to Sears that there had been no guns in

the car.    Sears replied that he would not lie for Suggs.

            Sears also testified that on July 21, 2006, he heard a

loud bang at the side door and saw an intruder enter his home.   The

intruder had a silver handgun, which he pointed at Sears’ head.

Sears recognized the intruder as Suggs.     Sears said, “No, Ricky,

you don’t got to do this, Man.    I ain’t going to go down there.   I

ain’t going to say nothing to the court.”    Suggs replied, “I told

you.”   Suggs then attempted to shoot Sears, but the gun jammed

several times.     Rhonda West, Sears’ mother, also pleaded with

Suggs, saying that no one would testify.       Suggs replied, “This

ain’t got nothing to do with you, Shorty.”      There was testimony


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that Suggs often referred to women as “Shorty.”        Suggs walked

around the room, attempting to get a clear shot at Sears, whom West

was trying to protect with her body.     Suggs eventually fired two

shots, hitting Suggs in the forearm and West in the hand.     Sears

testified that he was certain the intruder was Suggs.    Similarly,

West knew that the assailant was Suggs, and she addressed him as

“Ricky” when begging him not to shoot and promising there would be

no testimony.

          Jamol Alexander testified that on the night of July 20,

2006, he and Suggs went to a bar.   Suggs mentioned that someone had

“snitched” on him.   Alexander realized that Suggs was speaking of

Sears. Suggs informed Alexander that he would have to “murk” Sears

to prevent his testimony.     “Murk” is slang for “murder.” Suggs

asked Alexander whether he had a gun, and when Alexander replied

that he did, Suggs asked to purchase it.

          Suggs and Alexander left the bar and drove to Alexander’s

home, which is in Sears’ neighborhood.      Suggs asked to ride by

Sears’ home.    The men drove around Sears’ block twice, and Suggs

remarked that Sears was home.   Alexander gave Suggs a gun.   Suggs

told Alexander that he would be paid for the gun if Alexander

kicked Sears’ door in.    Alexander kicked the door open and ran

away.   A few minutes later, Suggs returned to Alexander and

announced, “I got him.   I shot him and his mom.   I think I murked

him.”


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     This evidence was sufficient to convict Suggs on both Counts

Two and Three.    There was overwhelming evidence that Suggs was the

assailant who broke into Sears’ home and shot both Sears and his

mother.      Further,   with    respect    to     Count    Two,       the   evidence

conclusively   showed    that   Suggs     attempted       to   kill    Sears.      He

announced to Alexander his intent to murder Sears in order to

prevent his testimony at the firearm trial, and he tried to shoot

Sears in the head.       With respect to Count Three, the evidence

established that Suggs used physical force against both Sears and

West in an effort to prevent Sears’ imminent testimony.



                                    II

           Suggs contends that the district court erred at the trial

on Count One when it permitted the introduction of evidence that

officers found cocaine and marijuana in Suggs’ car and evidence

that Suggs shot Sears and West.           Suggs further contends that the

district court erred at the second trial when it permitted the

introduction     of   certain   crime     scene    photographs         and    a   911

recording.     We review the admission of evidence for abuse of

discretion.    United States v. Forrest, 429 F.3d 73, 79 (4th Cir.

2005).    We find no merit to Suggs’ arguments.

            Testimony about drugs found in Suggs’ car was intrinsic

to the charged offense and admissible to complete the story of the

crime.    See United States v. Higgs, 353 F.3d 281, 311 (4th Cir.


                                   - 7 -
2003); United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994).

The    drugs    were     found    contemporaneously          with    and   in    the    same

location as the gun.             Additionally, Sgt. Marshall discovered the

gun after his canine officer alerted to the presence of drugs in

the car.

               Sears’ testimony at the first trial about Suggs’ attempt

to persuade Sears not to testify and about the shootings was

admissible       under    Fed.     R.    Evid.     404(b).      We     have     held    that

“[e]vidence       of     witness     intimidation      is     admissible        to     prove

conciousness of guilt and criminal intent under [Rule] 404(b), if

the evidence (1) is related to the offense charged and (2) is

reliable.”       United States v. Hayden, 85 F.3d 153, 159 (4th Cir.

1996).     Here, the evidence was related to the firearm offense

because it showed that Suggs was trying to dissuade Sears from

testifying.       Further, the evidence was reliable, as it came from

Sears himself. Finally, given the overwhelming evidence that Suggs

possessed      the     gun,    the      introduction    of    testimony         about    the

shootings did not result in undue prejudice.                         See Fed. R. Evid.

403.

               Suggs also contests the admission at the second trial of

a tape of Rhonda West’s 911 call.                  We conclude that the recording

was admissible under Fed. R. Evid. 803(6) because it constitutes a

record    kept    in     the   course     of   a   regularly        conducted    business

activity.       The tape’s probative value did not outweigh the chance


                                           - 8 -
of any unfair prejudice to Suggs, given the powerful testimony by

Sears, West, and Alexander.

           At the second trial, photographs of the crime scene were

admitted into evidence.     Some of the photographs showed children’s

toys near pools of blood.     Admission of these photographs was not

an abuse of discretion.     Rather than inflaming the passions of the

jury, the photographs merely completed the story of the crime.

Again, given the substantial testimony against Suggs, there is no

chance that introduction of the photographs unduly prejudiced his

defense.



                                  III

           We review a sentence imposed after United States v.

Booker, 543 U.S. 220 (2005), to determine whether it is “within the

statutorily    prescribed     range”     and   reasonable.      United

States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).          Here,

Suggs’ sentence was statutorily authorized.      Reasonableness review

requires us to consider whether the chosen sentence constitutes an

abuse of discretion. United States v. Pauley, No. 07-4270, 2007 WL

4555520, at *5 (4th Cir. Dec. 28, 2007).       In making this decision,

we first examine the sentence “for significant procedural errors.”

Id.   There were no such errors in this case.         We note that the

sentencing court:    correctly calculated the advisory guideline




                                 - 9 -
range of 324-405 months;2 heard from the parties regarding an

appropriate sentence; and considered the factors3 set forth at 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).                 Id.; see Gall v.

United States, No. 06-7949, 2007 WL 4292116, at *7 (U.S. Dec. 10,

2007).    Our reasonableness review also requires us to consider the

substance of the sentence, taking into account “the totality of the

circumstances.”      Pauley, 2007 WL 4555520, at *5.         Having carefully

reviewed    the    record,      we   conclude   that    Suggs’   sentence     is

reasonable.



                                        IV

            We accordingly affirm Suggs’ convictions 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


      2
      We reject Suggs’ contention that the district court engaged
in inappropriate judicial factfinding when it calculated his base
offense level and determined that his offense level should be
enhanced based on obstruction of justice and serious bodily injury
to the victims. After Booker, as before, facts used in setting a
sentence at or below the statutory maximum are determined by the
judge based on a preponderance of the evidence. United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005).
      3
      The district court adequately considered the statutory
factors prior to imposing sentence.   We note that a sentencing
court need not “robotically tick through” every subsection of
§ 3553(a). United States v. Montes-Pineda, 445 F.3d 375, 380 (4th
Cir. 2006); see Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007).

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