                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4084


UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

      v.

DARRELL L. WITCHER,

             Defendant – Appellant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:17-cr-00111-HEH-2)


Submitted: September 27, 2018                                 Decided: October 31, 2018


Before WILKINSON and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Miriam Airington-Fisher, AIRINGTON OVERHOLSER & ROCKECHARLIE, PLLC,
Richmond, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney,
Alexandria, Virginia, Heather Hart Mansfield, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       On November 15, 2016, Richmond police officers attempted to stop a vehicle

driven by Darrell L. Witcher because it had a defective taillight. Instead of stopping,

Witcher sped away and attempted to elude the officers. During the ensuing chase,

Witcher’s passenger, Tynell D. Jones, threw some firearms out of the passenger window.

Shortly thereafter, the officers apprehended the men and recovered two firearms from the

pursuit route: a Smith & Wesson .40 caliber handgun and a Glock .40 caliber handgun

that had a large capacity magazine. Witcher, who was a convicted felon, eventually pled

guilty to possessing the Smith & Wesson handgun in violation of 18 U.S.C. § 922(g)(1). 1

Witcher now appeals his 78-month sentence, arguing that the district court procedurally

erred by miscalculating his advisory sentencing range. We affirm.

       “Although the sentencing guidelines are only advisory, improper calculation of a

guideline range constitutes significant procedural error, making the sentence procedurally

unreasonable and subject to being vacated.” United States v. Hargrove, 701 F.3d 156,

161 (4th Cir. 2012). To assess whether a district court properly calculated the guideline

range, including its application of any sentencing enhancements, we review the court’s

legal conclusions de novo and its factual findings for clear error. United States v. Fluker,

891 F.3d 541, 547 (4th Cir. 2018).

       In calculating Witcher’s advisory sentencing range, the district court set his total

offense level at 19. To reach this level, the court started with a base offense level of 20


       1
           Jones pled guilty to illegally possessing the Glock.

                                               2
based on its finding that the offense involved a semiautomatic firearm capable of

accepting a large capacity magazine (i.e., the Glock), see U.S.S.G. § 2K2.1(a)(4)(B)(i)(I);

added two levels based on its finding that the offense involved three firearms, see

U.S.S.G. § 2K2.1(b)(1)(A); and subtracted three levels based on its finding that Witcher

accepted responsibility, see U.S.S.G. § 3E1.1. Because Witcher had a criminal history

category of VI, his advisory guideline range was 63-78 months. Explaining its decision to

impose the 78-month sentence, the court specifically referenced Witcher’s extensive

criminal history, the fact that Witcher was on probation when this offense occurred, and

the fact that Witcher had violated probation on numerous other occasions. The court

noted that no prior sentence or supervision period deterred Witcher or promoted respect

for the law, and it concluded that these factors, as well as protection of the community,

warranted the sentence under 18 U.S.C. § 3553(a). See J.A. 112-13. 2

       Witcher contends that the district court erred in two respects. First, he argues that

the court erroneously found that his offense involved a semiautomatic firearm capable of

accepting a large capacity magazine because the evidence establishes that Jones alone

possessed the Glock. Second, he argues that the court erroneously found that his offense

involved three firearms because the evidence establishes that only two firearms were


       2
         Prior to the sentencing hearing, the district court notified the parties that it was
considering imposing an upward variance from the applicable guideline range based on
Witcher’s criminal history, the need to promote respect for the law, and the need to
provide adequate deterrence to criminal conduct. J.A. 5. After overruling Witcher’s
objections and setting the advisory sentencing range at 63-78 months, the court withdrew
the variance notice. In doing so, however, the court explained that even if it had sustained
Witcher’s objections, it would nonetheless have set the range at 63-78 months. J.A. 104.

                                             3
recovered. For these reasons, Witcher challenges the setting of his base offense level at

20 pursuant to § 2K2.1(a)(4)(B)(i)(I) and the addition of two levels pursuant to §

2K2.1(b)(1)(A). In his view, the court should have set his base offense level at 14 and,

with a two-level acceptance of responsibility adjustment, set his total offense level at 12,

which would have yielded an advisory sentencing range of 30-37 months. We disagree.

       At sentencing, the government presented the testimony of ATF Special Agent Josh

Valot, recent video clips from Facebook, and audio recordings of several phone calls

Witcher made while incarcerated. In one video clip, Witcher and Jones are together, and

Jones is holding a firearm with a large capacity magazine. In one jail phone call, Witcher

explained that he fled from police because he thought the vehicle he was driving was

stolen and to allow Jones “to play . . . football.” Supp. J.A. 1. Witcher’s football reference

is an apparent admission that he attempted to elude police in part so that Jones could

dispose of the firearms. In another jail phone call, Witcher stated that his “strap” had

been found, but “it was triple. . . . They got two.” Supp. J.A. 2. He also stated that the

third firearm was “the jank with the beam on it.” Id. Agent Valot testified, based on his

experience, that a “strap” is a firearm and a “jank with a beam” is a firearm with a laser

sight. J.A. 78.

       After considering this evidence, the district court held Witcher accountable for the

Glock as well as the Smith and Wesson under a constructive possession theory because of

the Glock’s obvious and distinctive appearance and because Jones threw it from the

vehicle while Witcher attempted to elude the officers. See, e.g., Henderson v. United

States, 135 S.Ct. 1780, 1784 (2015) (“Constructive possession is established when a

                                              4
person, though lacking such physical custody, still has the power and intent to exercise

control over the object.”); United States v. Al Sabahi, 719 F.3d 305, 311 (4th Cir. 2013)

(“The government can establish constructive possession by direct or circumstantial

evidence.”); United States v. Chambers, 918 F.2d 1455, 1458 (9th Cir. 1990) (“Conduct

by the driver of a vehicle that appears intended to aid a passenger in disposing of

[contraband] is probative of joint possession of the [contraband].”). The court also held

Witcher accountable for a third, unrecovered, firearm because in his jail phone calls he

“dispatched someone – a group of people out to look for the weapon,” he “was very

descriptive of it,” and he “was adamant that they needed to find it.” J.A. 103.

       Sufficient evidence exists in the record to support the district court’s findings

underlying the guideline calculation. We therefore hold that the findings are not clearly

erroneous and that the sentence should be affirmed. See Anderson v. City of Bessemer

City, 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the evidence,

the factfinder’s choice between them cannot be clearly erroneous.”). 3 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




       3
          Alternatively, the government argues that the alleged procedural sentencing
errors are harmless because the district court indicated that it would have utilized the
same advisory sentencing range even if it had sustained Witcher’s objections. Because
we have concluded that the court did not procedurally err, we need not address this
alternative argument.

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