United States v. McGowan , 270 F. App'x 235 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4751
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES RODRIKUS MCGOWAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:06-cr-00989-HMH)
Submitted: February 28, 2008 Decided: March 3, 2008
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, James Rodrikus McGowan was
convicted of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g) (2000). The district court
sentenced McGowan to 78 months in prison. McGowan timely appealed.
McGowan’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), identifying no meritorious grounds
for appeal but questioning whether the district court erred by
denying McGowan’s Fed. R. Crim. P. 29 motion for judgment of
acquittal. McGowan was advised of his right to file a pro se
supplemental brief but he has not done so.
We review de novo a district court’s decision to deny a
Rule 29 motion for judgment of acquittal. United States v. Smith,
451 F.3d 209, 216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006).
Where, as here, the motion was based on a claim of insufficient
evidence, “[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942). In evaluating the sufficiency of the evidence, this
court “do[es] not review the credibility of the witnesses and
assume[s] the jury resolved all contradictions in the testimony in
favor of the government.” United States v. Sun, 278 F.3d 302, 313
(4th Cir. 2002). The court “must consider circumstantial as well
as direct evidence, and allow the government the benefit of all
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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 McGowan under § 922(g)(1), the
Government had to establish that (1) McGowan had been previously
convicted of a felony, (2) McGowan knowingly possessed the firearm,
and (3) the possession was in or affecting interstate or foreign
commerce. See United States v. Gilbert, 430 F.3d 215, 218 (4th
Cir. 2005), cert. denied, 127 S. Ct. 58 (2006). McGowan stipulated
to the first element at trial. 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 showed
that McGowan dropped an object in the bushes. When the object was
investigated, it turned out to be a stocking cap wrapped around
gloves and a pistol. McGowan’s DNA was on the gloves, and the
firearm had traveled in interstate commerce. In addition, a
witness had seen McGowan with a firearm earlier in the day. We
conclude that jurors could reasonably convict McGowan on this
evidence.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm McGowan’s conviction and sentence. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
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review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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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