                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-4488


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JERRY SCOTT HILL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:10-cr-00080-FL-1)


Submitted:   April 30, 2012                   Decided:   May 4, 2012


Before WILKINSON, KING, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Jerry Scott Hill was convicted by a jury of possessing

a   firearm     as     a    convicted     felon,       in     violation         of    18     U.S.C.

§ 922(g) (2006), and sentenced to 262 months’ imprisonment.                                       He

noted    a    timely        appeal,     challenging          the       sufficiency         of    the

evidence      and     the      reasonableness      of       his        sentence.        For      the

reasons that follow, we affirm.

              The evidence presented at Hill’s trial, viewed in the

light most favorable to the Government, see United States v.

Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as

follows.        On    October     25,     2009,    the      Harnett       County       Sheriff’s

Office received a 911 “domestic disturbance” call from Denise

Miller — Hill’s live-in girlfriend.                         Miller claimed that Hill

had barricaded himself inside the home he shared with her and

would not let her in.              Deputy Jose Peralta testified that, when

he arrived at the home, he knocked on the front door and, after

receiving       no    response,        went    around       to    the     back    door       where,

again, he received no response after knocking.                                 Peralta called

Miller and advised that no one appeared to be in the home and

that she could return.                Peralta also spoke with Hill on his cell

phone,    and      was     told   by    Hill    that     he       was    not     in   the       home.

Shortly thereafter, Miller arrived and asked Peralta to check

the   residence          for   her.      Miller    unlocked             the    back    door      for

Peralta      and     Deputy     Robbie    Adams    (who          had    arrived       just      after

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Miller); the two deputies searched the home and, upon entering

the living room, saw a shotgun in plain sight leaning against

the   wall     next     to    the    front   door,    as   well    as    a     green   bag

containing shotgun shells.                A criminal history check revealed

that Hill was a convicted felon.

               Hill soon arrived, and, when asked about the shotgun,

said, “It’s not mine.               It belongs to [Miller’s] brother, and he

let me borrowed [sic] it because I heard noises in the back of

the property, and I got it for my protection.”                      Adams testified

that when he asked Hill why he had the shotgun, Hill replied,

“You know, I’m paranoid.              They’re out to get me.”

               Miller    testified       that,   although     she       told    the    911

dispatcher that she thought Hill had her brother’s shotgun in

the house, she had never seen Hill in possession of the gun, nor

had she seen it in her house prior to its discovery by the

deputies.        According to Miller, approximately two weeks after

Hill’s   arrest,        her   son,    Clay   Baker,    and   her    nephew,      Brandon

Miller, came to her and said that they — not Hill — had borrowed

the shotgun from Miller’s brother.

               Miller’s brother, Kent Miller, testified that Brandon

and Clay had borrowed his shotgun some time before October 25,

2009,    and    that    he    had    never   loaned   the    gun    to   Hill.         Both

Brandon and Clay also testified that it was they, not Hill, who

had borrowed the shotgun from Kent Miller.                   At the conclusion of

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the     Government’s            evidence,           Hill     moved       for     a    judgment       of

acquittal, Fed. R. Crim. P. 29, on the basis of insufficient

evidence; the motion was denied.                           The jury found Hill guilty as

to    Count        Three      of    the        indictment      (which          charged      him    with

possessing a firearm on October 25, 2009); he was acquitted as

to Count One (charging him with possessing a different firearm

on a prior occasion).

               The presentence report (“PSR”) assigned Hill a base

offense level of 22, U.S. Sentencing Guidelines Manual (USSG),

§ 2K2.1(a)(3)             (2010),        and    a     four-level         increase      because       he

possessed          the    firearm        in     connection       with      the       commission      of

another offense, USSG § 2K2.1(b)(6) — based on conduct of which

Hill was acquitted — or a total offense level of 26.                                         However,

because       he    had       three      prior      violent      felony        convictions,         Hill

qualified          as    an    armed      career          criminal       and    was    assigned       an

offense level of 34.                     See 18 U.S.C. § 924(e), USSG § 4B1.4.

Based    on    a        criminal      history         category      of    VI,    Hill’s      advisory

Guidelines          range          was     determined            to      be      262-327          months

imprisonment.             The court imposed a sentence at the bottom of the

range; Hill timely appealed.

               Hill first argues that the evidence was insufficient

to support his conviction because the Government presented no

physical evidence linking him to the firearm at issue and three

witnesses      testified           that        Hill    had    not     borrowed        the    shotgun.

                                                      4
When   a   defendant       challenges          the    sufficiency      of    the       evidence

supporting the jury’s guilty verdict, we view the evidence and

all reasonable inferences in favor of the Government and will

uphold     the    jury’s    verdict      if     it    is    supported      by     substantial

evidence.        United States v. Cameron, 573 F.3d 179, 183 (4th Cir.

2009).       “[S]ubstantial 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.”      Id. (internal quotation marks omitted).                            In reviewing

for substantial evidence, we will not weigh evidence or review

witness credibility.           United States v. Wilson, 118 F.3d 228, 234

(4th Cir. 1997).           Rather, it is the role of the jury to judge

the credibility of witnesses, resolve conflicts in testimony,

and weigh the evidence.             Id.; United States v. Manbeck, 744 F.2d

360, 392 (4th Cir. 1984).                     Appellate reversal on grounds of

insufficient        evidence      “will       be     confined    to    cases       where    the

prosecution’s        failure      is    clear.”            United     States      v.    Green,

599 F.3d     360,    367    (4th       Cir.    2010)       (internal      quotation       marks

omitted).

                To convict Hill of violating § 922(g), the Government

need   not      produce    evidence       of    actual      possession;         constructive

possession is sufficient.               United States v. Gallimore, 247 F.3d

134,     136-37     (4th     Cir.      2001).          The      Government        may    prove

constructive        possession      by     demonstrating          that      the    defendant

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“exercised, or had the power to exercise, dominion and control

over the item.”    Id. at 137 (internal quotation marks omitted).

          We find that the evidence was sufficient to establish

Hill’s constructive possession of the firearm.                Miller reported

to the 911 operator that she had reason to believe Hill was

barricaded in the house and that he had a shotgun; deputies saw

the shotgun in plain sight; Hill admitted several times that he

had borrowed the shotgun from Miller’s brother.                 Although Hill

presented testimony to prove that Miller’s son and nephew had

borrowed the shotgun, the jury apparently did not believe their

testimony.    This   court     does   not     review   the    credibility    of

witnesses and assumes the factfinder resolved all contradictions

in the testimony in favor of the Government.                 United States v.

Sun, 278 F.3d 302, 313 (4th Cir. 2002).

          Next, Hill argues that his sentence is unreasonable

because: (a) the district court relied upon acquitted conduct

and unreliable testimony in calculating his offense level, and

(b) the court failed to adequately explain the reasons for the

chosen sentence.

          Hill was charged with two counts of being a felon in

possession of a firearm:       Count One alleged possession of a 20-

gauge shotgun on May 16, 2008; Count Two alleged possession of

the shotgun found at his residence on October 25, 2009.                     The

jury   acquitted   Hill   as    to    Count    One.      Nevertheless,      at

                                      6
sentencing, the district court held Hill accountable for the

firearm charged in Count One and assigned an offense level of

34, not 33, because the firearm was one described in 26 U.S.C.

§ 5845(a).

            A     sentencing        court        may     consider      uncharged     and

acquitted conduct in determining a sentence so long as it is

proven by a preponderance of the evidence.                          United States v.

Grubbs,    585    F.3d      793,    798-99       (4th    Cir.   2009).      Here,    the

district     court     found       that    the     testimony      presented   by     the

Government       as   to    Count    One    was     credible     and   proved,      by   a

preponderance of the evidence, that Hill possessed the shotgun

on May 16, 2008.             We find no error in the district court’s

conclusion.

            Hill      also    argues      that    his    sentence   is    unreasonable

because    the    district     court       failed       to   adequately   explain    the

chosen sentence.           In reviewing a sentence, this court must first

ensure that the district court did not commit any “significant

procedural error,” such as failing to properly calculate the

applicable Guidelines range, failing to consider the 18 U.S.C. §

3553(a) (2006) factors, or failing to adequately explain the

sentence.       Gall v. United States, 552 U.S. 38, 51 (2007).                       The

district court is not required to “robotically tick through §

3553(a)’s every subsection.”               United States v. Johnson, 445 F.3d

339, 345 (4th Cir. 2006).                  However, the district court “must

                                             7
place on the record an ‘individualized assessment’ based on the

particular facts of the case before it.                This individualized

assessment need not be elaborate or lengthy, but it must provide

a rationale tailored to the particular case at hand and adequate

to   permit    ‘meaningful     appellate   review.’”       United   States   v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552

U.S. at 50) (internal footnote omitted)).

              Our review of the sentencing transcript discloses that

the district court properly considered the relevant § 3553(a)

factors and adequately explained the chosen sentence.

              Accordingly, we affirm Hill’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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