                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4235


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL WILLIAM GABBARD,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:06-cr-00326-JAB-1)


Submitted:   June 15, 2010                    Decided:   July 2, 2010


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Allan Levin, COZEN O’CONNER, Atlanta, Georgia, for Appellant.
Anna Mills Wagoner, United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Michael   William     Gabbard    appeals    his    conviction      and

sentence, following a jury trial, on charges of possession with

intent    to     distribute    marijuana,       in   violation    of   21    U.S.C.

§ 841(a)(1),       (b)(1)(d)    (2006)      (Count    Two);   possession      of    a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A)(i) (2006) (Count Three); maintaining

a residence for the purpose of manufacturing, distributing, and

using    a     controlled     substance,       in    violation    of   21    U.S.C.

§ 856(a)(1), (b) (2006) (Count Four); and possessing a firearm

after having been convicted of a felony, in violation of 18

U.S.C. §§ 922(g), 924 (2006) (Count Five).                 Gabbard pled guilty

before trial to distribution of marijuana, also in violation of

21   U.S.C.     § 841(a)(1),    (b)(1)(d)       (Count    One).     The     district

court sentenced Gabbard to 300 months in prison on Count Five;

120 months on Count One, to run concurrently with Count Five;

120 months on Count Two, to run concurrently with Counts One and

Five; 240 months on Count Four, to run concurrently with Counts

One,    Two,    and   Five,    and    60   months    on   Count   Three,     to   run

consecutively to Counts One, Two, Four, and Five, for a total

sentence of 360 months.              Gabbard challenges the convictions on

Counts Two, Three, Four, and Five as not supported by sufficient

evidence.       For the reasons that follow, we affirm.



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            “A        defendant     challenging         the     sufficiency         of    the

evidence faces a heavy burden.”                     United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690

(2008).        This     court     reviews      a    sufficiency        of    the   evidence

challenge by determining whether, viewing the evidence in the

light most favorable to the Government, any rational trier of

fact could find the essential elements of the crime beyond a

reasonable doubt.            United States v. Collins, 412 F.3d 515, 519

(4th    Cir.     2005).           This     court      reviews        both     direct      and

circumstantial          evidence,        and       accords     the      Government        all

reasonable inferences from the facts shown to those sought to be

established.           United     States       v.    Harvey,     532    F.3d       326,   333

(4th Cir. 2008).            In reviewing for sufficiency of the evidence,

this court does not review the credibility of the witnesses, and

assumes    that       the    jury   resolved         all     contradictions         in    the

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

510 F.3d 433, 440 (4th Cir. 2007).                     We will uphold the jury’s

verdict if substantial evidence supports it, and will reverse

only in those rare cases of clear failure by the prosecution.

Foster, 507 F.3d at 244-45.

            Gabbard’s argument on appeal is that because he was

not    found     in    the    trailer     where       the     subject       marijuana     and

firearms       were     found,      the     Government         cannot        satisfy      the

possession element of Counts Two, Three, and Five, and cannot

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establish     that       he    maintained       a    residence       at    the       trailer    to

sustain his conviction on Count Four.                         He does not dispute the

presence of marijuana or firearms in the trailer or challenge

his previous felony conviction.

              Possession may be actual or constructive.                              See United

States v. Rusher, 966 F.2d 868, 879 (4th Cir. 1992).                                    We have

previously upheld findings of constructive possession in cases

with facts similar to those in this case.                             See, e.g., United

States v. Morrison, 991 F.2d 112 (4th Cir. 1993) (constructive

possession where defendant resided in home that was used for

manufacture and distribution of crack cocaine) (citing United

States v. Lawson, 682 F.2d 1012, 1017 (D.C. Cir. 1982) (joint

possession         of   the     premises     where         drugs    are    in    plain      sight

sufficient     to       find    possession));         United       States v.         Davis,    562

F.2d 681, 685 (D.C. Cir. 1977) (defendant who lived on premises

had constructive possession of drugs openly displayed).

              Gabbard challenges the Government’s contention that he

lived    in   the       trailer      where   the      marijuana       and      firearms       were

found.     He first asserts that absent some official documentation

of Gabbard’s residency (such as a lease or utility bill) the

jury could not link him to the trailer, and that in addition,

the lack of his fingerprints on the premises fatally undermines

the   Government’s            case    against       him.      While       it    is   true     that

evidence      of    a    lease       or   utility     bill     in    Gabbard’s        name,     or

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evidence of Gabbard’s fingerprints at the premises, would have

been persuasive, we have never held that the most persuasive

evidence is necessary for a conviction.                            Here, officers found

mail   addressed      to      Gabbard    at    the        trailer’s      mailing       address,

along with several of Gabbard’s personal effects.                               In addition,

a Government witness testified that he had purchased marijuana

from   Gabbard     at    the     trailer       between       ten    and    fifteen       times.

Finally,    a    Government         witness     placed       Gabbard      at    the     trailer

moments     before      the    police     executed          the    search       warrant      and

discovered the contraband in the trailer.                          The jury could, and

in   fact   did,     reasonably         find       that    Gabbard       had    constructive

possession of the contents of the trailer.

             Gabbard asserts that the Government’s witness placing

him in the trailer on the day of the police raid was mistaken.

While conceding that this court does not judge the credibility

of   witnesses,      Gabbard        argues     that       under    the    “physical       facts

doctrine,” we may ignore the witnesses’ testimony.                                    Gabbard’s

appeal to the physical facts doctrine is unavailing.                                  To ignore

a witness’s testimony on “physical facts” grounds, the testimony

must   be       “utterly       at     variance          with      well-established           and

universally      recognized         physical       laws     and    therefore      inherently

impossible.”            United      States         v.     Shipp,    409        F.2d    33,    37

(4th Cir. 1969) (quoting Travelers Indemnity Co. v. Parkersburg

Iron & Steel Co., 70 F.2d 63 (4th Cir. 1934)).                                 While it may

                                               5
have been difficult to evade police on the day of the raid,

Gabbard has not demonstrated that such an escape would have been

“inherently impossible.”

            Viewing the evidence in the light most favorable to

the     Government,     we     conclude    that   a    reasonable       jury   could

determine that Gabbard lived at the trailer, and was present on

May 19, 2005, and therefore had constructive possession of the

marijuana and firearms found in the trailer on that date.

            Accordingly, we affirm the judgment of the district

court.     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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