                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-5002



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


DAMEN LAMAR WILLIAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:07-cr-00016-F)


Submitted:   September 17, 2008           Decided:   November 3, 2008


Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi
Rangarajan, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Damen Lamar Williams was convicted pursuant to a guilty

plea of possession of a firearm by a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000), and was sentenced to

92 months in prison.     Williams timely appeals.            Finding no error,

we affirm.

          Williams     asserts   that     the   district     court   improperly

imposed the two-point enhancement for possessing between three and

seven firearms, pursuant to U.S. Sentencing Guidelines Manual

(USSG) § 2K2.1(b)(1)(A) (2006).            Section 2K2.1(b)(1)(A) (2006)

provides a two-level enhancement if a defendant possesses three to

seven firearms, and the commentary explains that the points should

be applied only if the firearms were unlawfully sought, possessed,

or distributed.      Williams admits that he possessed a shotgun, but

argues that he never handled or possessed the two handguns that

police found in the grass near him.         Williams claims he asked his

brother to bring the three firearms to a photo shoot, but he never

touched two handguns, and they were used merely as props by a

friend.      Accordingly,   Williams      argues   that    the   evidence   was

insufficient    to   support   the   finding     that   he    possessed    these

additional weapons.

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

a sentencing court continues to make factual findings concerning

sentencing factors by a preponderance of the evidence.                    United


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States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,

127 S. Ct. 121 (2006).       Long-standing authority has permitted a

sentencing court to consider any evidence at sentencing that “has

sufficient indicia of reliability,” see USSG § 6A1.3(a), including

even “conduct underlying [an] acquitted charge, so long as that

conduct has been proved by a preponderance of the evidence.”

United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam);

United States v. Montgomery, 262 F.3d 233, 249 (4th Cir. 2001).

The district court’s factual findings are reviewed for clear error.

United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001).            This

deferential standard of review requires reversal only if this court

is “left with the definite and firm conviction that a mistake has

been committed.”     United States v. Stevenson, 396 F.3d 538, 542

(4th Cir. 2005) (quoting Anderson v. City of Bessemer City, 470

U.S. 564, 573 (1985)).

          As the district court correctly determined, Williams

constructively   possessed    the   two   handguns   even   if   he   never

physically handled them.     Possession of a firearm may be actual or

constructive.    United States v. Moye, 454 F.3d 390, 394 (4th Cir.

2006).   For constructive possession, Williams merely needed to

voluntarily exercise “dominion and control over the firearm, or

ha[ve] the power and the intention to exercise dominion and control

over the firearm.”    United States v. Scott, 424 F.3d 431, 435-36

(4th Cir.), cert. denied, 126 S. Ct. 779 (2005).        Williams admits


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that he requested that his brother bring the three firearms to the

photo    shoot;   thus,   the   firearms   were   present   solely   due   to

Williams’s initiative.          Williams also had access to all three

loaded weapons, as they were found in close vicinity to him.          These

facts support the district court’s conclusion that Williams had the

power to exercise dominion and control over all three firearms.

Accordingly, we conclude that the district court properly applied

the two-point enhancement.

            Williams next contends that the district court erred when

it failed to impose a variance sentence because Williams’s use of

the firearms was not for an illicit purpose, but was merely an

“innocent” use of the firearms as props for a photo shoot.           Because

Williams had no intention of using the firearms as anything other

than props, he argues that this innocent intention serves as

mitigating evidence warranting a sentence below the guidelines

range.

            Despite Williams’s argument that the use of the firearms

was innocuous, and they were merely present as props, the firearms

were found with ammunition.        Moreover, the photo shoot was taking

place in an outdoor area of a housing project--a heavily populated

area where passers-by would see the weapons, where a loaded firearm

would be unsafe, and where the mere presence of firearms could

cause a disturbance.      Even if the weapons were being used merely as




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props, this does not negate the fact that Williams’s prior felony

conviction rendered possession of firearms unlawful.

             Moreover, the district court imposed a sentence within

the statutorily prescribed range and the sentence was reasonable.

While Williams argued at sentencing that a lower sentence should

have been imposed due to an overstated criminal history and a lack

of criminal intent with regard to possession of the firearms, the

district court did not err when it declined to impose a variance

sentence.     After United States v. Booker, 543 U.S. 220 (2005), a

district court is no longer bound by the range prescribed by the

sentencing     guidelines.       However,    in    imposing     a   sentence

post-Booker, courts still must calculate the applicable guidelines

range after making the appropriate findings of fact and consider

the range in conjunction with other relevant factors under the

guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008).

Gall v. United States, 128 S. Ct. 586, 596 (2007).            The court must

give both parties “an opportunity to argue for whatever sentence

they deem appropriate,” and the district judge “may not presume

that the Guidelines range is reasonable.”         Gall, 128 S. Ct. at 596-

97.   Instead, the court must make an “individualized assessment

based on the facts presented.”      Id. at 597.      This court will affirm

a post-Booker sentence if it “is within the statutorily prescribed

range and is reasonable.” United States v. Moreland, 437 F.3d 424,

433   (4th   Cir.   2006)    (internal   quotation    marks   and   citation


                                     5
omitted).     “[A] sentence within the proper advisory Guidelines

range is presumptively reasonable.”           United States v. Johnson, 445

F.3d 339, 341 (4th Cir. 2006); see Rita v. United States, 127 S.

Ct. 2456, 2462, 2465 (2007) (permitting appellate courts to afford

a presumption of reasonableness to a within-Guidelines sentence).

            Here,     the   district     court    appropriately    treated   the

guidelines    as     advisory.     The    court    sentenced   Williams   after

considering the sentencing guidelines and the § 3553(a) factors, as

instructed by Booker.        Williams’s ninety-two month sentence is the

bottom of the advisory guidelines range of 92 to 115 months in

prison and well below the ten-year statutory maximum sentence

pursuant to 18 U.S.C. § 924(a)(1) (2000). The court explained that

it had taken the sentencing guidelines and § 3553(a) factors into

account.     The court highlighted that Williams’s criminal record

consisted    of     six   drug-related    offenses,    including    two   felony

narcotic distribution convictions, and that Williams had been

placed on probation a total of seven times, and his probation was

revoked     twice    due    to   violations      or   new   criminal   conduct.

Williams’s sentence was thus clearly based upon his extensive prior

record and his continued involvement in criminal activity.                    We

accordingly conclude the district court did not err in declining to

impose a variance sentence, and that nothing in the record suggests

any information to rebut the presumption that Williams’s sentence

was reasonable.


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            Accordingly,   we   affirm   Williams’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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