                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4374


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LAVELLE ROE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00218-REP-1)


Submitted:   March 17, 2011                     Decided:   April 7, 2011


Before AGEE and    WYNN,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Mary E. Maguire, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Lavelle Roe appeals from his conviction for possession

of a firearm by a convicted felon and his resulting ninety-two

month sentence.          On appeal, he challenges the sufficiency of the

evidence and the reasonableness of his sentence.                     We affirm.



                                          I.

              First, Roe challenges the sufficiency of the evidence

supporting his conviction.               Specifically, Roe contends that no

witness ever saw him in possession of the firearm.                           He also

asserts that his DNA, which was found on the gun, could have

been placed on the gun by an incidental secondary transfer.

              We review de novo a district court’s denial of a Fed.

R. Crim. P. 29 motion for a judgment of acquittal.                               United

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

challenging       the    sufficiency      of     the    evidence     bears   a    heavy

burden.       United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997).        A   jury   verdict   must     be    sustained     “if,    viewing     the

evidence in the light most favorable to the prosecution, the

verdict is supported by ‘substantial evidence.’”                         Smith, 451

F.3d     at    216.        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.”             Id. (internal quotation marks omitted).

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“The jury, not the reviewing court, weighs the credibility of

the     evidence    and     resolves     any      conflicts       in    the    evidence

presented.”       Beidler, 110 F.3d at 1067 (internal quotation marks

omitted).     “Reversal for insufficient evidence is reserved for

the rare case where the prosecution’s failure is clear.”                              Id.

(internal quotation marks omitted).

             To    establish      a   violation     of    18    U.S.C.    § 922(g)(1)

(2006), the Government must prove that: (1) Roe was a convicted

felon; (2) he knowingly possessed a firearm; and (3) the firearm

traveled     in    interstate         commerce.          See    United       States   v.

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).                          Roe stipulated

that he had previously been convicted of a felony and that the

firearm traveled in interstate commerce.                       Thus, the Government

had only to prove Roe’s knowing possession.                     To prove possession

under    § 922(g)(1),       the   Government       need    not    show    “actual      or

exclusive     possession;         constructive      or     joint       possession      is

sufficient.       The Government may prove constructive possession by

demonstrating that the defendant exercised, or had the power to

exercise, dominion and control” over the firearm.                             Gallimore,

247   F.3d   at    136-37    (internal        quotation        marks   and    citations

omitted).

             Here, viewing the evidence in the light most favorable

to the Government, we find that there was sufficient evidence

from which the jury could conclude beyond a reasonable doubt

                                          3
that Roe constructively possessed the firearm.                Deltasha Taylor,

Roe’s girlfriend, testified that the guns were Roe’s and that he

acknowledged his possession by agreeing to remove them from her

home and by requesting permission to store them in the basement.

Roe also told Taylor, after the seizure of the guns from a

vehicle in which he was a passenger, that the police took them,

supporting an inference that the guns in the car and the house

were one and the same.       Moreover, the firearm with which Roe was

charged was found in the glove compartment of the car in which

he   was    seated   in    the   front       passenger   seat.       Even     more

incriminating, the firearm had Roe’s DNA on it.                   The evidence

presented by the Government was more than sufficient for the

jury to conclude beyond a reasonable doubt that Roe had dominion

and control over the firearm.



                                       II.

            Roe claims that the district court misunderstood its

authority to grant a variance and incorrectly believed that it

was constrained from granting a variance on the grounds of lack

of   youthful   guidance.        However,       the   record,     read   in    its

entirety,    reveals      that   the     district     court     understood    its

authority to impose a variance sentence, but declined to do so.

The court heard from both Roe and the Government on this issue,

noted the advisory nature of the Sentencing Guidelines, made

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certain      comments    regarding           its      opinions        on    the    Guidelines’

departure rules, and explicitly recognized that departures and

variances are treated differently.                       The district court concluded

that   the    arguments        proffered         by      Roe   at    sentencing      were      not

sufficient to diverge from the Guidelines range.                                  We find that

the district court’s decision was proper.                            See United States v.

Hampton, 441 F.3d 284, 287 (4th Cir. 2006) (variance must be

supported by the facts of the particular case).



                                             III.

              Roe next claims that the district court’s explanation

for the chosen sentence was insufficient.                              In evaluating the

sentencing court’s explanation of a selected sentence, we have

consistently held that, while a district court must consider the

statutory      factors       and         explain      its      sentence,      it     need      not

explicitly     reference           18    U.S.C.      §    3553(a)     (2006),      or    discuss

every factor on the record, particularly when the court imposes

a   sentence        within     a        properly      calculated       Guidelines         range.

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).

But,   at     the    same    time,         the     district         court    “must      make    an

individualized         assessment           based        on    the     facts       presented.”

Gall v. United States, 552 U.S. 38, 50 (2007).                                 Moreover, the

district      court     must       state      the        individualized        reasons         that

justify a sentence, even when sentencing a defendant within the

                                                 5
Guidelines range.            Rita v. United States, 551 U.S. 338, 356-57

(2007).      The reasons articulated by the district court for a

given sentence need not be “couched in the precise language of

§ 3553(a),” so long as the “reasons can be matched to a factor

appropriate for consideration . . . and [are] clearly tied [to

the     defendant’s]        particular      situation.”          United      States     v.

Moulden, 478 F.3d 652, 658 (4th Cir. 2007).

            Here, the district court stated that it would not vary

the sentence on the grounds proffered by Roe, concluded that a

Guidelines       sentence         was    “sufficient     but     not   greater        than

necessary,” and delineated the § 3553 factors that applied to

Roe’s case.       While the court did not give explicit reasons as to

why it was declining to vary Roe’s sentence or how specifically

the § 3553 factors applied in Roe’s case, the court’s reasoning,

along     with    the       court’s      earlier    statements     regarding      Roe’s

criminal    history         and    the   relatively     small    variance      Roe     was

seeking,    was    sufficient.            Importantly,     the    court      explicitly

concluded    that       a   Guidelines      sentence    satisfied      the    statutory

sentencing factors.            We conclude that there was no error in the

district     court’s          explanation          of   Roe’s     within-Guidelines

sentence.




                                             6
                                        IV.

             Finally, Roe asserts that the district court plainly

erred in calculating his criminal history category by giving him

a point for a crime he committed as a minor when the sentence

for   that   crime    was    imposed    more   than    five    years      before   the

commencement     of    the    instant    offense.        See       U.S.   Sentencing

Guidelines Manual § 4A1.2(d)(2)(B) (2009).                   The Government does

not dispute that an error was committed but contends that the

removal of one criminal history point would not have altered

Roe’s criminal history score.            In response, Roe agrees that his

score would not have been altered but argues that the removal of

the one point, together with the application of Amendment 742 to

an unrelated Guidelines section, 1 would have placed Roe in a

lower Criminal History Category.

             However, in his reply brief, Roe admits that he is

raising “this issue now so that he can raise it before the

district     court    when   this   case      goes    back    for    resentencing.”

Presumably admitting that he would not otherwise be entitled to

relief under this provision, 2 Roe states that the “Court need not

      1
       See USSG § 4A1.1 (amended on November 2010 to remove
“recency” point for commission of the instant offense less than
two years after release from imprisonment).    This section was
amended after Roe was sentenced.
      2
        See USSG § 1B1.10(c)               (Amendment        742    not   listed    as
retroactively applicable).


                                         7
rule on this issue now, but Mr. Roe requests that when the Court

remands this case, it instruct the district court to consider

the   issue.”      Given   the    fact     that    none     of   his    other    claims

entitle    him   to   relief,    Roe   has    waived      consideration         of   this

claim.

            Based on the foregoing, we affirm Roe’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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