                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 13-4703


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHRISTIAN SWEAT,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:13-cr-00028-MSD-TEM-1)


Submitted:   May 1, 2014                   Decided:   May 30, 2014


Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mark Diamond, Richmond, Virginia, for Appellant.         Dana J.
Boente, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Jonathan A. Ophardt,
Special   Assistant  United    States Attorney,   UNITED   STATES
DEPARTMENT OF JUSTICE, Newport News, Virginia; Meghan Leibold,
Third Year Law Student, WASHINGTON UNIVERSITY SCHOOL OF LAW, St.
Louis, Missouri, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Christian        Sweat        (Sweat)            appeals     his     conviction            for

possession       of     a    firearm       by       a    convicted        felon,       18    U.S.C.

§ 922(g)(1).           On     appeal,      he       presses       three    claims:          (1)   the

district     court          abused      its       discretion        when    it     denied,         as

untimely,    his       motion      to    suppress;         (2)     there    is     insufficient

evidence in the record to support his conviction; and (3) the

sentence     imposed          by     the          district       court     is      procedurally

unreasonable.         For the reasons stated below, we affirm.



                                                   I

                                                   A

       Around 11:40 p.m. on February 1, 2013, Newport News Police

Officer Joseph Cavanaugh (Officer Cavanaugh) was alone in his

marked police cruiser while patrolling 39th Street in Newport

News, Virginia.             As Officer Cavanaugh proceeded down 39th Street

just east of Marshall Avenue, a pickup truck traveled towards

him.    Because the pickup truck had only one operable headlight,

Officer    Cavanaugh          executed        a    U-turn     and    followed       the      pickup

truck onto Marshall Avenue.                        Officer Cavanaugh activated his

blue   lights     and       pulled      the       pickup    truck    over       just    after      it

turned onto 44th Street.

       Officer        Cavanaugh         approached         the     pickup       truck       on    the

driver’s side and noticed three occupants inside.                                Sweat was the

                                              - 2 -
driver.       While Officer Cavanaugh was explaining to Sweat the

reason for the stop, he smelled marijuana.                         As a result, he

returned to his police cruiser to request an additional officer

to assist him with the stop.                After Newport News Police Officer

Curt Whittlesey (Officer Whittlesey) arrived on the scene, the

two officers approached the pickup truck and asked the three

occupants to exit.           Sweat was placed in handcuffs and escorted

by   Officer     Cavanaugh    to     his    police    cruiser,     where    Sweat    was

instructed to sit on the police cruiser’s front bumper.

      Officer Cavanaugh began to explain to Sweat what was going

to transpire with the stop.                 While this was happening, one of

the passengers began to struggle with Officer Whittlesey.                           Upon

seeing    the    struggle,     Officer       Cavanaugh      left    Sweat    alone   to

assist    Officer     Whittlesey.           The    passenger       broke    away    from

Officer Whittlesey and fled.                At this point, Officer Cavanaugh

turned back toward Sweat and, noticing him beginning to walk

away from the police cruiser, ordered him to stop.                         In response

to this order, Sweat ran from the scene.

      Sweat     ran   down    44th    Street,        with   Officer    Cavanaugh      in

pursuit.        Sweat failed to stop despite multiple demands from

Officer    Cavanaugh.        When     Officer      Cavanaugh     was   approximately

five feet behind Sweat, Officer Cavanaugh observed an object

fall from Sweat.        From the sound he heard when the object hit

the pavement, Officer Cavanaugh immediately knew the object was

                                           - 3 -
a   firearm.       Officer      Cavanaugh       then    stopped,        picked   up    the

firearm, ejected the magazine, and removed a round of ammunition

from the chamber.       Sweat continued to flee.

      A few minutes later, Newport News Police Lieutenant Morgen

Tietjens    (Lieutenant         Tietjens),       responding        to   a    report    that

another    officer     was   involved      in    a   foot     pursuit,       spotted    the

handcuffed     Sweat      and     apprehended        him.          Officer     Cavanaugh

responded to Lieutenant Tietjens’ location, identified Sweat as

the   person   who     had     dropped     the    firearm      while        fleeing,   and

arrested him.

                                           B

      On March 12, 2013, a federal grand jury sitting in the

Eastern    District     of    Virginia     returned      a    one-count       indictment

charging Sweat with being a felon in possession of a firearm.

Id.     On April 19, 2013, Sweat entered a plea of not guilty and

asked    for   a   jury      trial.       On     that   date,       a   United    States

Magistrate Judge set a May 3, 2013 pretrial motions deadline and

a June 12, 2013 trial date.              On May 31, 2013, the district court

entered an ordering moving the trial date to June 13, 2013.

      In the late afternoon of June 12, 2013, Sweat filed an

untimely motion to suppress.             During an ensuing telephone status

conference that day, Sweat made an oral motion to continue the

trial.     According      to     defense     counsel,        the    motions     were   the

result of a fax he had received earlier that day from Sweat’s

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mother.      The fax contained a letter from a state motor vehicle

inspector who asserted he could testify that the headlights on

the pickup truck were operable and had not been changed since

the pickup truck had been assembled.

       In    response,    the     government     objected       to    a   continuance

because of witness availability issues and objected to holding a

suppression     hearing      immediately       before    trial       because    of    the

impracticality      of      investigating       Sweat’s    belatedly        disclosed

assertions     of   fact.       The   government    also    proffered          that   the

pickup truck had been in the control of Sweat’s family since it

was released from impoundment and noted that a recorded jail

call between Sweat and a woman contained an implicit admission

that   the    headlight     was   not   working    on     the    night    of    Sweat’s

arrest.

       During the telephone status conference, the district court

inquired of defense counsel as to why a motion to suppress had

not been timely filed.            Defense counsel explained that he had

determined      a   suppression       motion     would    be     fruitless       unless

Sweat’s claim could be substantiated with some kind of witness

testimony, preferably testimony from an independent witness who

could verify that the headlight was working on the night of

Sweat’s arrest.       Defense counsel informed Sweat’s family of his

legal opinion and the time limits governing suppression motions.

Having no information concerning an independent witness by the

                                        - 5 -
motions deadline, defense counsel chose not to file a motion to

suppress.

     In ruling on the motions, the district court concluded that

the proffered information did not provide a sufficient basis to

warrant    a    continuance        or    to    consider      an    untimely        motion    to

suppress.           Accordingly,        the    district      court     denied       both    the

motion to suppress and the motion for a continuance.

     The       following      day,      June    13,       2013,    Sweat’s        jury   trial

commenced.          At trial, the parties stipulated that the firearm

recovered by Officer Cavanaugh had not been manufactured in the

Commonwealth of Virginia and that Sweat was a convicted felon.

Thus, the only issue for the jury was whether Sweat knowingly

possessed       the    firearm.          At    the    close       of   the       government’s

evidence, Sweat moved for a judgment of acquittal pursuant to

Rule 29 of the Federal Rules of Criminal Procedure, contending

that the evidence presented by the government did not establish

that he possessed the firearm recovered by Officer Cavanaugh.

After the arguments of counsel, the district court denied the

motion.        On     June   14,   2013,       the    jury   returned        a    verdict    of

guilty.

     Following         the   preparation         of   a    Presentence       Investigation

Report (PSR), the district court held a sentencing hearing on

September 13, 2013.           The district court found that Sweat’s total

offense level was 16 and that his Criminal History Category was

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III, producing an advisory sentencing range of 27 to 33 months’

imprisonment       under    the     United       States   Sentencing       Guidelines.

After considering Sweat’s allocution, the arguments of counsel,

and   the    18    U.S.C.        § 3553(a)       factors,    the    district       court

sentenced    Sweat    to     30    months’       imprisonment.       Sweat     noted    a

timely appeal.



                                            II

      Sweat contends that the district court erred in denying, as

untimely, his motion to suppress.                  Under Rule 12 of the Federal

Rules of Criminal Procedure, a motion to suppress must be raised

prior to trial or by the deadline established by the district

court.     Fed. R. Crim. P. 12(b)(3)(C), 12(c).                   A defendant waives

the right to file a suppression motion if he fails to file the

motion prior to the deadline set by the district court, unless

he can establish good cause for the waiver.                        Fed. R. Crim. P.

12(e).     We have found good cause to excuse an untimely motion to

suppress     where,        for    instance,        the    delay     in    filing     the

suppression motion was caused by the government’s failure to

turn over the evidence sought to be suppressed.                          United States

v. Chavez, 902 F.2d 259, 263–64 (4th Cir. 1990).

      We    will   not     disturb     a    district      court’s     denial    of     an

untimely motion to suppress absent clear error.                          United States

v. Ruhe, 191 F.3d 376, 385 (4th Cir. 1999); Chavez, 902 F.2d at

                                           - 7 -
263.     Accordingly, we rarely grant relief from the denial of an

untimely       suppression         motion.            See    Ruhe,    191     F.3d    at    386–87

(holding that no good cause was present to raise an untimely

suppression         issue     where       the    defendant           could    have       with    due

diligence         discovered       the    information             necessary    to     raise      the

issue);      Chavez,      902     F.2d     at    263        (recognizing      that       appellate

courts      generally       deny    relief       from       the    denial     of    an    untimely

suppression motion where the motion was made after the court-

imposed deadline and the defendant proffered only a “dubious

excuse”).          After a careful review of the record, we conclude

that     the      district       court     did        not     commit     error,          clear    or

otherwise,         when     it    denied,        as     untimely,       Sweat’s      motion       to

suppress.         Both below and in this court, Sweat has failed to set

forth good cause under Rule 12(e) for the delay in filing the

motion to suppress.

       In    a     related       argument,       Sweat        contends       that    his     trial

counsel rendered ineffective assistance when he failed to timely

file a motion to suppress.                       To prove a claim of ineffective

assistance of counsel, a defendant must show (1) “that counsel’s

performance         was     deficient,”           and        (2)     “that     the       deficient

performance prejudiced the defense.”                          Strickland v. Washington,

466 U.S. 668, 687 (1984).                  In evaluating counsel’s performance,

we indulge a strong presumption that counsel’s performance falls

within      the    wide     range    of    reasonable          professional          assistance.

                                                - 8 -
Id. at 689.            Further, we must evaluate the reasonableness of

counsel’s performance within the context of the circumstances at

the time of the alleged error, rather than with the benefit of

hindsight.          Id.    at    690.         To     satisfy       the    second       prong    of

Strickland, a defendant must show a reasonable probability that,

but   for     counsel’s         unprofessional           error,     the    result       of     the

proceeding would have been different.                      Id. at 694.

      We     will      address     a    claim       of    ineffective       assistance          of

counsel      on     direct      appeal    only       if    counsel’s       ineffectiveness

conclusively           appears     on     the       record.            United      States       v.

Baldovinos,         434   F.3d     233,       239        (4th   Cir.      2006).         Having

thoroughly        reviewed       the     record,          we    find     that    ineffective

assistance        of    counsel        does   not       conclusively       appear       on     the

record.      Accordingly, we decline to address this claim on direct

appeal.



                                               III

      Sweat contends that the district court erred by denying his

motion for judgment of acquittal under Rule 29 of the Federal

Rules   of    Criminal       Procedure.            We     review    de    novo     a   district

court’s decision to deny such a motion.                         United States v. Smith,

451 F.3d 209, 216 (4th Cir. 2006).                        Where, as here, the Rule 29

motion was based on a claim of insufficient evidence, “[t]he

verdict of a jury must be sustained if there is substantial

                                              - 9 -
evidence, taking the view most favorable to the Government, to

support it.”     Glasser v. United States, 315 U.S. 60, 80 (1942).

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. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc).     In assessing whether the record contains substantial

evidence, we do not review the credibility of the witnesses, and

we assume the jury resolved all contradictions in the witness

testimony in favor of the government.           United States v. Sun, 278

F.3d 302, 313 (4th Cir. 2002).           We consider both circumstantial

and direct evidence and “allow the government the benefit of all

reasonable inferences from the facts proven to those sought to

be established.”     United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982).

       In order to convict Sweat under § 922(g)(1), the government

had to establish that: (1) he previously had been convicted of a

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

possession was in or affecting interstate or foreign commerce at

some point during the firearm’s existence.               United States v.

Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en banc).                    As noted

above, at trial, the parties stipulated as to the first and

third elements.      Consequently, the second element is the only

element in question.

                                  - 10 -
       Viewing the evidence in the light most favorable to the

government and resolving all contradictions in the testimony in

favor of the government, the evidence in the record shows that

Sweat tried to flee the stop while wearing handcuffs.                         Officer

Cavanaugh testified that, while Sweat was running, an object

fell    from   Sweat’s     person   and     hit   the   pavement   while      Officer

Cavanaugh was only five feet away from Sweat.                  Officer Cavanaugh

testified that he recognized the object from the sound it made

when it hit the pavement and that he picked up the firearm

immediately after Sweat dropped it.                Sweat was apprehended soon

after he dropped the firearm, still wearing handcuffs.                           From

this     evidence,     a    jury    could      reasonably     infer    that    Sweat

knowingly possessed the firearm recovered by Officer Cavanaugh.



                                          IV

       Finally, Sweat challenges the procedural reasonableness of

his sentence.        We review a criminal sentence for reasonableness

using    an    abuse   of    discretion        standard.      United    States    v.

McManus, 734 F.3d 315, 317 (4th Cir. 2013); see also Gall v.

United States, 552 U.S. 38, 51 (2007).

       Under the abuse of discretion standard, we first consider

whether the district court committed any significant procedural

error,    such   as    improperly     calculating       the   Guidelines      range,

failing to consider the sentencing factors under § 3553(a), or

                                      - 11 -
failing to adequately explain the sentence.                       United States v.

Allmendinger, 706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S.

Ct. 2747 (2013).         If the sentence is procedurally reasonable, we

then    consider     its    substantive          reasonableness,         taking     into

account the totality of the circumstances.                       Gall, 552 U.S. at

51.    We presume that a sentence within a properly calculated

Guidelines range is substantively reasonable.                     United States v.

Susi, 674 F.3d 278, 289 (4th Cir. 2012).

       In sentencing a defendant, the district court first must

correctly calculate the defendant’s sentencing range under the

Sentencing Guidelines.            Allmendinger, 706 F.3d at 340.                   Next,

the    district     court    is     required       to    give     the     parties     an

opportunity to argue for what they believe is an appropriate

sentence, and the district court must consider those arguments

in light of the factors set forth in § 3553(a).                    Id.

       When rendering a sentence, the district court must make and

place on the record an individualized assessment based on the

particular facts of the case.              United States v. Carter, 564 F.3d

325, 328, 330 (4th Cir. 2009).              In explaining the sentence, the

“sentencing      judge     should    set    forth       enough    to     satisfy    the

appellate court that he has considered the parties’ arguments

and    has   a    reasoned     basis       for    exercising       his     own     legal

decisionmaking authority.”           Rita v. United States, 551 U.S. 338,

356 (2007).       While a district court must consider the statutory

                                       - 12 -
factors     and         explain    its     sentence,       it     need    not     explicitly

reference      §    3553(a)       or   discuss      every       factor    on    the     record.

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

       As noted above, the PSR recommended a total offense level

of 16 and a Criminal History Category III, which produced an

advisory sentencing range of 27 to 33 months’ imprisonment under

the Sentencing Guidelines.                 The parties agree that the district

court correctly calculated the advisory sentencing range.

       After       the    attorneys       presented       argument       to    the    district

court, Sweat exercised his right to allocution.                           Of note, during

his allocution, Sweat professed his innocence, expressing the

opinion that the jury got it wrong because of the presence of

numerous inconsistences in the witness testimony that “were not

remembered in the case.”               (J.A. 213).

       Prior       to    imposing      sentence,         the    district       court,    in    a

commendably         painstaking          fashion,        considered       the     §     3553(a)

factors.       The        district     court:      (1)    recounted       the    nature       and

circumstances of the § 922(g)(1) offense under § 3553(a)(1); (2)

summarized         the     history       and     characteristics         of     Sweat     under

§ 3553(a)(1); (3) discussed the need for the sentence imposed to

reflect the seriousness of the offense, promote respect for the

law,    and    provide        just        punishment       for     the        offense    under

§ 3553(a)(2)(A); (4) discussed the need for the sentence imposed

to afford deterrence under § 3553(a)(2)(B); (5) discussed the

                                               - 13 -
need for the sentence imposed to protect the public from further

crimes under § 3553(a)(2)(C); (6) discussed the need for the

sentence imposed to provide needed education or treatment under

§ 3553 (a)(2)(D); (7) discussed the kinds of available sentences

under § 3553(a)(3) and § 3553(a)(4); and (8) discussed the need

to     avoid    sentencing      disparities           under    §    3553(a)(6).               The

district        court      explicitly           acknowledged         Sweat’s         argument

regarding factual disparities at trial and dismissed it because

the jury resolved these disparities against him.

       After considering all of the relevant § 3553(a) factors,

the     district        court    imposed          a    sentence          of    30       months’

imprisonment,       which       fell       in    the    middle       of       the    advisory

sentencing range.          In reaching this sentence, the district court

indicated that it did not see contrition from Sweat, although it

had    initially        considered     a    sentence      at       the    bottom        of    the

advisory       range.      According        to   the    district         court,     a    higher

sentence was necessary “because I just don’t sense that you get

it.”    (J.A. 223).

       Sweat argues that his sentence is procedurally unreasonable

because    the    district      court      increased      his      sentence,        in       part,

based on the comments he made during his allocution.                                We reject

Sweat’s argument.           Lack of remorse certainly is a fact that a

district court can consider in its evaluation of the § 3553(a)

factors.       See, e.g., United States v. Cruzado-Laureano, 527 F.3d

                                           - 14 -
231, 237 (1st Cir. 2008) (holding that the defendant’s lack of

remorse     during     allocution         is      an    appropriate      fact     to    be

considered in evaluating the § 3553(a) factors); United States

v. Smith, 424 F.3d 992, 1016-17 (9th Cir. 2005) (same).

     To be sure, § 3553(a)(1) states that, in determining the

particular    sentence       to    be    imposed,       the   district    court    shall

consider “the nature and circumstances of the offense and the

history   and    characteristics            of    the    defendant.”       18     U.S.C.

§ 3553(a)(1).        The statute also directs the district court to

consider,    inter     alia,      the   need      for   the   sentence    imposed       “to

reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense,” id.

§ 3553(a)(2)(A),       and     the      need     “to    protect    the   public        from

further crimes of the defendant,” id. § 3553(a)(2)(C).                          Sweat’s

refusal to acknowledge that he committed the § 922(g)(1) offense

is information that falls well within these guiding provisions,

giving relevant insight into his character and raising concerns

about his respect for the law and his future conduct.

     Sweat      also    argues       that        his    sentence   is    procedurally

unreasonable because the district court failed to provide an

individualized assessment of the applicable § 3553(a) factors.

However, our review of the record convinces us that the district

court considered the § 3553(a) factors, as noted above in a



                                         - 15 -
commendably painstaking fashion, and rendered an individualized

assessment based on the particular facts of this case.



                                       V

     For the reasons stated herein, the judgment of the district

court is affirmed.       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




                                     - 16 -
