                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4021


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GLEN ALLEN STEWART, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:14-cr-00090-FL-1)


Submitted:   September 28, 2015           Decided:   October 13, 2015


Before NIEMEYER, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A jury found Glen Allen Stewart, Jr., guilty of possessing

a firearm and ammunition after sustaining a felony conviction,

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

court sentenced Stewart to 120 months in prison.                                   On appeal,

Stewart     challenges          his    conviction,         asserting       first    that   the

Government’s evidence of his guilt was legally insufficient and,

second,     that     the        district      court       abused    its     discretion     in

admitting certain evidence pursuant to Fed. R. Evid. 404(b).                                We

find    these    contentions           lack    merit       and    therefore       affirm   the

judgment.

                                               I.

       We   review        the    sufficiency        of    the    evidence     supporting     a

conviction de novo.              United States v. McLean, 715 F.3d 129, 137

(4th Cir. 2013).            “A defendant bringing a sufficiency challenge

must overcome a heavy burden, and reversal for insufficiency

must be confined to cases where the prosecution’s failure is

clear.”      United States v. Engle, 676 F.3d 405, 419 (4th Cir.

2012)    (citation         and    internal      quotation         marks     omitted).       In

assessing the sufficiency of the evidence, our review is limited

to determining whether, viewing the evidence in the light most

favorable       to   the        Government      and       accepting    the       factfinder’s

determinations        of        credibility,        the    verdict     is    supported      by

substantial       evidence,           that    is,    “evidence      that     a     reasonable

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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 Stewart of violating 18 U.S.C. § 922(g)(1), the

Government was required to prove beyond a reasonable doubt that

Stewart was previously convicted of a crime punishable by a term

of imprisonment exceeding one year; he knowingly possessed the

firearm and ammunition; and the possession was in or affecting

commerce,       because      the    firearm           and     ammunition          traveled       in

interstate or foreign commerce.                      United States v. Moye, 454 F.3d

390, 395 (4th Cir. 2006) (en banc).                         Because Stewart stipulated

that he had been convicted of a felony and the uncontradicted

testimony of an ATF agent established an interstate nexus, the

only contested issue in this case was whether Stewart “knowingly

possessed” the firearm and ammunition.

      “Liability       under       § 922(g)(1)          may    arise       from       a    felon’s

voluntary and intentional possession of a firearm, whether the

felon     possessed       the       weapon            actually       or        constructively,

exclusively or jointly with others.”                          United States v. Graham,

796   F.3d     332,    376     (4th       Cir.       2015).         “A    person          may   have

constructive        possession       of    contraband          if    he        has    ownership,

dominion,      or   control     over      the        contraband      or    the       premises    or

vehicle in which the contraband was concealed.”                                  United States

                                                 3
v. Herder, 594 F.3d 352, 358 (4th Cir. 2010).                                   Constructive

possession      may     be    proven     by      either       circumstantial      or    direct

evidence.       “Either way, a fact finder may properly consider the

totality       of    the     circumstances”            in     determining       whether    the

Government has met its burden of proof.                        Id.

      Taken in the light most favorable to the prosecution, we

find ample record support for the jury’s finding that Stewart

constructively possessed the firearm and ammunition found in the

vehicle on the night in question.                            Specifically, both of the

police officers involved in the traffic stop underlying this

prosecution         testified       to     seeing       a     gun,    which     was    loaded,

protruding      from        the    vehicle’s         center    console.         Stewart    was

driving the vehicle, which he had borrowed from his aunt.                                 At a

minimum, then, Stewart had dominion and control over the vehicle

in which the loaded firearm was located, which is enough to

support    a    conviction         under     a    constructive        possession       theory.

Id.

      But the Government’s evidence went further.                                The police

officer     who      first        observed       the    firearm       offered     clear    and

unequivocal         testimony       describing         the    close     proximity      between

Stewart    and       the     gun—explaining           that    the    firearm     was    within

inches of Stewart’s body—and that Stewart glanced toward the gun

and began to move his hand toward it after the officer directed

Stewart    to       raise    his    hands.        This       evidence    also    establishes

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Stewart’s     constructive           possession           of    the        firearm,      as   it   was

readily within his reach and at his disposal.                                    See United States

v.    Shrader,     675       F.3d    300,      308    (4th          Cir.    2012)       (“[W]e     have

repeatedly affirmed the right of juries to consider proximity as

a     part   of    their          analysis      of        a     defendant’s             constructive

possession.”).

       Stewart     attempts         to   cast        doubt      on        the    veracity     of    the

officers’       testimony,           emphasizing              the     lack        of     fingerprint

evidence linking Stewart to the firearm and ammunition and the

officers’ failure to videotape the stop or take photographs on

the    scene.          But   it     is   the    role      of        the     jury    to    weigh     the

credibility        of    the      evidence,          to       resolve           conflicts     in   the

evidence, and—where the evidence supports different, reasonable

interpretations—to             decide       which         interpretation                to    credit.

McLean, 715 F.3d at 137.                  The jury was entitled to accept the

officers’ testimony and, on substantial evidence review, we will

not weigh evidence or review witness credibility.

                                                II.

       Stewart     next       argues     that    the          district          court    abused    its

discretion        by    admitting,          under      Fed.          R.     Evid.       404(b),    the

testimony of Deputy Sheriff Frank Barbagallo, with the Flagler

County (Florida) Sheriff’s Office, and evidence of Stewart’s two

prior convictions for being a felon in possession of a firearm.

Deputy Sheriff Barbagallo testified that, in March 2014—only a

                                                 5
few months after the events underlying Stewart’s prosecution in

this case—he stopped another vehicle Stewart was driving, also

loaned    to    Stewart     by    his    aunt,      and    that    several     rounds    of

ammunition were found during a later inventory search of that

vehicle.

      We review a district court’s “decision to admit evidence

under Rule 404(b) for abuse of discretion.”                           United States v.

Byers, 649 F.3d 197, 206 (4th Cir. 2011).                          Under Rule 404(b),

evidence of other bad acts may be admitted as proof of “motive,

opportunity,       intent,       preparation,        plan,      knowledge,     identity,

absence    of    mistake,    or     lack      of    accident,”        but   “not . . . to

prove a person’s character in order to show that on a particular

occasion the person acted in accordance with [his] character.”

Fed. R. Evid. 404(b).

      “Rule 404(b) is an inclusive rule, admitting all evidence

of other crimes or acts except that which tends to prove only

criminal disposition.”            United States v. Wilson, 624 F.3d 640,

651 (4th Cir. 2010) (internal quotation marks omitted).                              “To be

admissible under Rule 404(b), evidence must be (1) relevant to

an issue other than character; (2) necessary; and (3) reliable.”

United    States    v.    Siegel,       536   F.3d       306,   317    (4th   Cir.    2008)

(internal       quotation    marks      omitted).          Nevertheless,       potential

Rule 404(b) evidence should be excluded if its probative value

is   substantially        outweighed       by      its    unfair      prejudice   to    the

                                              6
defendant.        United States v. Johnson, 617 F.3d 286, 296–97 (4th

Cir. 2010).

       Our review of the record confirms that Deputy Barbagallo’s

testimony meets all the criteria for admissibility under Rule

404(b).     Moreover, despite Stewart’s suggestion to the contrary,

the district court’s careful ruling with regard to the scope of

Barbagallo’s        testimony,         combined      with        the   limiting        jury

instructions, eliminated the risk of unfair prejudice.

       We   likewise       find   no    abuse      of     discretion      in   admitting

evidence     of    Stewart’s      two    prior       convictions       for     possessing

firearms as a convicted felon.                     See accord United States v.

Moran, 503 F.3d 1135, 1144 (10th Cir. 2007) (“[T]he fact that

[defendant] knowingly possessed a firearm in the past supports

the inference that he had the same knowledge in the context of

the    charged     offense.”);      United        States   v.    Jernigan,      341    F.3d

1273, 1281 (11th Cir. 2003) (“[T]he caselaw in this and other

circuits establishes clearly the logical connection between a

convicted felon’s knowing possession of a firearm at one time

and his knowledge that a firearm is present at a subsequent time

(or, put differently, that his possession at the subsequent time

is not mistaken or accidental).”); United States v. Cassell, 292

F.3d    788,      794-95    (D.C.      Cir.       2002)    (“A    prior      history    of

intentionally possessing guns, or for that matter chattels of

any sort, is certainly relevant to the determination of whether

                                              7
a person in proximity to such a chattel on the occasion under

litigation knew what he was possessing and intended to do so.”).

       However,   even   if    we    were       to    conclude   that    the   district

court erred in admitting the Rule 404(b) evidence, Stewart would

not be entitled to relief unless we also found that the error

was not harmless.        See United States v. Lighty, 616 F.3d 321,

355 (4th Cir. 2010).          “Where error is founded on a violation of

Rule 404(b), the test for harmlessness is whether we can say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was    not   substantially     swayed       by       the   error.”      Id.    (internal

quotation marks omitted).            As discussed above with regard to the

sufficiency of the Government’s evidence, we readily conclude

that   the   jury’s   verdict       was   not        substantially    swayed     by   the

admission of either Deputy Barbagallo’s testimony or evidence of

Stewart’s two prior felon-in-possession convictions.

       Accordingly, we affirm the criminal 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




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