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 2004-11

United States v. Broadie , 116 F. App'x 452 ( 2004 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4294
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NELSON W. BROADIE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-03-259)
Submitted:   November 18, 2004         Decided:     November 24, 2004
Before LUTTIG and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James F. Sumpter, JAMES F. SUMPTER, P.C., Richmond, Virginia, for
Appellant.   Michael S. Dry, Assistant United States Attorney,
Matthew Childs Ackley, OFFICE OF THE U.S. ATTORNEY, Richmond,
Virginia; Paul J. McNulty, United States Attorney, Michael J.
Elston, OFFICE OF THE U.S. ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nelson W. Broadie appeals from his jury conviction and
sentence for possession of a firearm by a convicted felon, in
violation of
    18 U.S.C. § 922
    (g)(1) (2000). Upon the jury’s finding
of guilt, the district court sentenced Broadie to seventy-eight
months’ imprisonment, two years of supervised release, and ordered
payment of a $100 special assessment.              On appeal, Broadie claims
insufficiency of the evidence and claims the district court erred
in refusing to grant his motion for a downward departure based on
over-representation of his criminal history.
In evaluating a sufficiency of the evidence challenge,
the   jury   verdict    must    be   upheld   if   there   exists    substantial
evidence, including circumstantial and direct evidence, to support
the verdict, viewing the evidence most favorable to the government.
Glasser v. United States,
    315 U.S. 60
    , 80 (1942); United States v.
Tresvant,
    677 F.2d 1018
    , 1021 (4th Cir. 1982). In resolving issues
of substantial evidence, we do not weigh evidence or review witness
credibility, United States v. Saunders,
    886 F.2d 56
    , 60 (4th Cir.
1989), rather, the credibility of witnesses is within the sole
province of the jury.          United States v. Lamarr,
    75 F.3d 964
    , 973
(4th Cir. 1996).       We may reverse a jury verdict only when there is
a   complete   absence    of    probative     facts   to   support   the   jury’s
conclusions.    Sherrill White Constr., Inc. v. South Carolina Nat'l
Bank,
    713 F.2d 1047
    , 1050 (4th Cir. 1983).
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Here, there was ample evidence to support the jury’s
verdict, including Broadie’s own trial testimony in which he
admitted the shotgun was in his apartment and further admitted that
he moved it.     While he further claimed he did not put it there and
did not possess it, asserting that it was left there by a prior
tenant, the jury apparently found that portion of his testimony not
to be credible.        Broadie further testified that he asked his
landlord to remove the shotgun from Broadie’s apartment, but the
landlord’s   testimony     contradicted    this   testimony.     There   was
testimony by police that when they responded to the call that a gun
had been discharged, Broadie initially denied that he had any
firearms in his apartment.       In addition, the government presented
evidence that the police found six .25-caliber unspent rounds on
the floor in Broadie’s bedroom, which rounds were the same brand
and caliber as the freshly-fired round discovered on the sidewalk
leading to Broadie’s apartment.         Additional evidence established
that   Broadie   was   a   convicted   felon.     We   find   this   evidence
sufficient to support the jury’s verdict.
Broadie further asserts that the district court erred in
refusing to grant his motion for downward departure.             A district
court’s refusal to grant a downward departure is not reviewable
unless the court based its decision on the mistaken belief that it
lacked authority to do so.        United States v. Matthews,
    209 F.3d 338
    , 352-53 (4th Cir. 2000).       In this case, because the district
- 3 -
court explicitly recognized its authority to depart, yet refused to
do so, we decline to review Broadie’s claim on appeal.
Accordingly, we affirm Broadie’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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