                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4008


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MIQUAN LIMIK SMITH, a/k/a Mike Smith, a/k/a Limik Smith,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:13-cr-00044-RLV-DSC-2)


Submitted:   July 30, 2015                 Decided:   January 14, 2016


Before DUNCAN, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Miquan Limik Smith appeals his convictions for conspiring

to commit an offense against the United States by committing

burglaries    and    stealing      firearms,       in    violation    of     18    U.S.C.

§ 371   (2012)     (Count   1),     aiding       and   abetting     the    receipt    and

possession    of     stolen    firearms,          in    violation     of    18     U.S.C.

§§ 922(j), 924(a)(2) (2012) (Count 2), and unlawfully possessing

one or more firearms while a convicted felon, in violation of 18

U.S.C. § 922(g) (Count 3).               On appeal, Smith argues that (1) the

district     court    abused       its     discretion      by   admitting         hearsay

testimony,    (2)    the    evidence       was    insufficient      to     sustain    his

convictions, and (3) the Government violated his due process

rights by failing to call his coconspirator to testify.                                We

affirm.

     First, we review the district court’s hearsay ruling for

abuse of discretion.          United States v. Gonzales-Flores, 701 F.3d

112, 117 (4th Cir. 2012).                “Hearsay” is any statement that the

declarant    does    not    make    at    the    instant    trial    that     “a    party

offers in evidence to prove the truth of the matter asserted in

the statement.”       Fed. R. Evid. 801(c).              Hearsay is inadmissible

except as otherwise provided by federal rule or statute.                             Fed.

R. Evid. 802.

     Here, we conclude that any error in the admission of the

challenged testimony was harmless because “it appears ‘beyond a

                                            2
reasonable doubt that the error complained of did not contribute

to the verdict obtained.’”                        See United States v. Lovern, 293

F.3d 695, 701 (4th Cir. 2002) (quoting Neder v. United States,

527 U.S. 1, 15 (1999)).                    The complained-of statement was offered

to prove that Smith was a passenger in a car connected with one

of the burglaries.              But even without the testimony, the evidence

was more than sufficient to sustain Smith’s connection with that

burglary,          his        coconspirator,             and     the       stolen        firearms.

Therefore, this claim entitles Smith to no relief.

       Nor    do     we       find    merit       in     Smith’s       contention        that     the

complained-of            statement           violates          his     rights        under        the

Confrontation           Clause.            The    Confrontation           Clause’s       reach     is

limited to testimonial statements.                            Crawford v. Washington, 541

U.S.    36,    68        (2004).           Here,        the    challenged     statement           was

nontestimonial           as    it     was    obtained          not   to    learn     about       past

events,      but    to     apprehend         a    fleeing        suspect.          See    Davis v.

Washington, 547 U.S. 813, 822 (2006) (explaining that statements

are    “nontestimonial               when        made     in     the      course     of     police

interrogation           under    circumstances            objectively        indicating         that

the primary purpose of the interrogation is to enable police

assistance         to     meet        an     ongoing          emergency”).           Thus,        the

Confrontation Clause is inapplicable.

       We    next       review       de    novo    the    district        court’s        denial    of

Smith’s Fed. R. Crim. P. 29 motion for judgment of acquittal.

                                                   3
United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).                                     We

will affirm if, when the evidence is viewed in the light most

favorable to the Government, “the conviction is supported by

substantial evidence.”             United States v. Hickman, 626 F.3d 756,

762-63    (4th      Cir.    2010)      (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.    Green,     599   F.3d       360,       367     (4th     Cir.    2015)

(internal     quotation       marks       omitted).           A    defendant        challenging

evidentiary         sufficiency        “faces       a    heavy           burden.”          United

States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007).                                  Reversal

of a conviction on these grounds is limited to “cases where the

prosecution’s        failure      is    clear.”          Id.        at    244-45     (internal

quotation marks omitted).

       To obtain a conviction under Count 1, the Government had to

show that Smith engaged in a conspiracy to violate 18 U.S.C.

§ 922(j),     which     requires       an    agreement            between    Smith     and    his

coconspirator, Johnson, to receive and possess stolen firearms,

and an overt act in furtherance of that conspiracy.                                        United

States v. Cone, 714 F.3d 197, 213 (4th Cir. 2013).                                Notably, the

agreement may be inferred from circumstantial evidence.                                    Cone,

714    F.3d    at    213.         Under     Count       2,    the     Government       had     to

demonstrate that Smith aided and abetted Johnson in violating

                                              4
§ 922(j).      Accordingly, to sustain Smith’s convictions under

both counts, a reasonable juror must be able to conclude that

Smith conspired, and aided and abetted Johnson, to knowingly

possess     stolen      guns    that      had   been     shipped     in    interstate

commerce.     See United States v. Moye, 454 F.3d 390, 395 (4th

Cir. 2006) (en banc).

     Under    Count      3,    the   Government        had   to   show     that   Smith

knowingly possessed a firearm, as Smith does not contest his

convicted-felon      status.         To    prove   possession,       the   Government

need only demonstrate that Smith’s “possession was constructive,

meaning     that   he    exercised,        or   had    the   power    to    exercise,

dominion    and    control      over      the   firearm.”         United   States   v.

Wilson, 484 F.3d 267, 282 (4th Cir. 2007) (internal quotation

marks omitted).

     Viewing the evidence in the light most favorable to the

Government, we conclude that a reasonable juror could make a

number of inferences critical to sustaining Smith’s conviction:

(1) Smith was present at the final burglary; (2) Smith threw a

duffel bag out of the car window as police pursued the car; and

(3) Smith knew that the bag contained stolen guns, which were

instantly recognizable by their distinct weight and shape.

     Given these inferences, the jury could conclude, beyond a

reasonable doubt, that Smith conspired to possess a stolen gun,

and aided and abetted Johnson in possessing a stolen gun.                          That

                                            5
Smith fled from Johnson’s car makes the jury’s interpretation of

the evidence all the more reasonable: “It cannot be doubted that

in appropriate circumstances, a consciousness of guilt may be

deduced from evidence of flight and that a jury’s finding of

guilt    may    be     supported      by     consciousness         of    guilt.”        United

States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001).                               Thus, we hold

that the evidence was sufficient to sustain the district court’s

judgment.

       We conclude by reviewing Smith’s due process claims, which

were not raised at trial, for plain error.                               United States v.

Promise,       255    F.3d    150,    153       (4th    Cir.    2001)     (en    banc).        To

satisfy this standard of review, Smith must demonstrate that an

error     (1)     occurred,         (2)    was       plain,    and      (3)     affected      his

substantial rights.             United States v. Olano, 507 U.S. 725, 732

(1993).        Even then, we may exercise our discretion to correct

such     errors       only    if     they       “seriously      affect        the    fairness,

integrity, or public reputation of judicial proceedings.”                               Id.

       Smith    essentially          claims      that    the    Government          engaged    in

prosecutorial misconduct by refusing to call Johnson to testify.

To     show     prosecutorial             misconduct,         Smith     must        demonstrate

“(1) that       the    prosecutors          engaged      in     improper        conduct,      and

(2) that       such    conduct       prejudiced         the    defendant’s          substantial

rights    so    as    to     deny    him    a    fair    trial.”        United       States    v.

Alerre, 430 F.3d 681, 689 (4th Cir. 2005).

                                                 6
     We find no evidence of prosecutorial misconduct on this

record.    The Government had the right to call whomever they

pleased, as did Smith.        Neither elected to call Johnson.            In

short, we see no basis for reversal.

     Accordingly, we affirm the district court’s judgment.                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




                                      7
