                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4189


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DURWOOD JOSEPH FIELDS,

                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. (5:08-cr-00395-FL-1)


Submitted:   April 27, 2011                     Decided:   May 20, 2011


Before MOTZ and    KING,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant.     George E.B. Holding,
United States Attorney, Jennifer P. May-Parker, David A.
Bragdon, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Durwood Joseph Fields was convicted after a jury trial

of   one    count       of    possession      of    one     or    more       firearms            by   a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924

(2006).         The    district      court    sentenced         Fields       to       120    months’

imprisonment.          Fields appeals, asserting that the district court

erred      in    refusing      his    requested          jury     instruction               on   mere

presence,        denying       his    request       to    give         the     final         closing

argument,        and    in    calculating          his    offense        level         under      the

U.S. Sentencing Guidelines Manual (“USSG”) (2009) without a jury

finding     the       facts   supporting      that       level        beyond      a    reasonable

doubt.     We affirm.

                We review jury instructions in their entirety and as

part of the whole trial to determine whether the district court

adequately instructed the jury on the elements of the offense

and the accused’s defenses.                  See United States v. Bostian, 59

F.3d 474, 480 (4th Cir. 1995).                      Both the decision whether to

give a jury instruction and the content of that instruction are

reviewed for abuse of discretion.                        United States v. Passaro,

577 F.3d        207,    221    (4th   Cir.     2009).            To    be    entitled            to   a

requested       jury    instruction,         the    party    urging          the      instruction

must establish a sufficient evidentiary foundation to support

the instruction.              United States v. Lewis, 53 F.3d 29, 33 n.8

(4th Cir. 1995).              In reviewing whether there is a sufficient

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evidentiary foundation for a requested instruction, we view the

evidence in the light most favorable to the party requesting the

instruction.          See United States v. Giraldi, 86 F.3d 1368, 1376

(5th    Cir.        1996).       The    refusal       to       give    a      requested        jury

instruction is reversible error only if the proposed instruction

“(1)    was    correct;      (2)    was      not    substantially             covered    by    the

court’s charge to the jury; and (3) dealt with some point in the

trial     so    important,         that      failure        to     give        the     requested

instruction          seriously     impaired         the        defendant’s           ability    to

conduct       his    defense.”         Passaro,       577       F.3d     at     221    (internal

quotation marks omitted).

               The district court did not commit reversible error in

refusing to give Fields’ requested instruction that his mere

presence at the scene of a crime was insufficient to show his

guilt on the firearms offense.                  Fields’ proposed instruction was

not supported by the facts presented at trial.                                In short, there

was no “scene of the crime” unless Fields possessed one or more

firearms       discovered     in       the     residence         where     he    was     living.

Absent Fields’ possession, there simply was no crime that could

be     improperly       attributed        to    him       by     his     presence        at    the

residence.          Further, the district court’s instructions regarding

the possession requirement were adequate to prevent a conviction

based solely on Fields’ proximity to a firearm.



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             Fields also contends that the district court committed

reversible    error    in    denying      his   request    to   give    the   final

closing argument.       A district court possesses broad discretion

to control closing argument, and its exercise of discretion will

not be overturned absent a clear abuse.                   See United States v.

Baptiste, 596 F.3d 214, 226 (4th Cir. 2010).                    A district court

abuses its discretion when it fails or refuses to exercise its

discretion, fails “adequately to take into account judicially

recognized factors constraining its exercise” of discretion, or

exercises its discretion based upon “erroneous factual or legal

premises.”     James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

If a district court abuses its discretion in ruling with respect

to closing argument, such an abuse will justify reversal of a

conviction only if the ruling is prejudicial.                   United States v.

Ollivierre, 378 F.3d 412, 417 (4th Cir. 2004), vacated on other

grounds by Ollivierre v. United States, 543 U.S. 1112 (2005).

             Rule 29.1 of the Federal Rules of Criminal Procedure

provides   that   “[c]losing       arguments     proceed     in   the    following

order: (a) the government argues; (b) the defense argues; and

(c) the government rebuts.”             Fed. R. Crim. P. 29.1.         The Rule is

designed to control the order of closing arguments and to permit

the defendant to respond to the prosecution’s argument in an

informed     manner.        See   id.    advisory   committee      note    (1974).

Nothing in the record before us, however, suggests that these

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core interests were invaded in this case.                            Further, although the

Rule does not “limit the discretion of the trial judge[,] whose

obligation it is to ensure a fair and orderly procedure in the

closing    arguments        to      the    jury,”       United       States    v.    Cardascia,

951 F.2d 474, 485 (2d Cir. 1991), Fields has not established

that he was prejudiced by the district court’s denial of his

request      for    the     final        closing        argument.        Accordingly,          the

court’s denial does not amount to reversible error.

              Finally,         we    conclude       that       Fields’       Sixth    Amendment

right to a jury trial was not violated when the district court

increased      his       base       offense        level       six    levels        under    USSG

§ 2K2.1(b)(1)(C) based on facts it found by a preponderance of

the evidence.         The district court’s application of the six-level

enhancement        did    not       result    in    a     sentence     greater       than     that

authorized by the jury’s verdict in this case.                                 See 18 U.S.C.

§ 924(a)(2).         Accordingly, the district court did not violate

the   Sixth    Amendment            in    applying       the    Guidelines      enhancement.

See United         States      v.     Booker,       543    U.S.       220,    232-44        (2005)

(holding      that       judge-found         sentence          enhancements         mandatorily

imposed under the Guidelines that result in a sentence greater

than that authorized by the jury verdict or facts admitted by

the defendant violate the Sixth Amendment’s guarantee of the

right   to    trial       by     jury);      see    also       Rita    v.     United    States,

551 U.S. 338, 352 (2007) (recognizing that the Supreme Court’s

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“Sixth Amendment cases do not automatically forbid a sentencing

court to take account of factual matters not determined by a

jury   and    to    increase     the   sentence   in     consequence”);        United

States   v.     Benkahla,        530   F.3d   300,      312    (4th     Cir.    2008)

(recognizing only that “the Guidelines must be advisory, not

that judges may find no facts”).

             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 the

court and argument would not aid in the decisional process.



                                                                           AFFIRMED




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