United States v. Shaw , 288 F. App'x 98 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4675
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROY TONY SHAW,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:06-cr-00423-WLO)
Submitted: February 29, 2008 Decided: July 23, 2008
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Vincent Frank Rabil, CRUMPLER, FREEDMAN, PARKER & WHITT, Winston-
Salem, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
After a jury trial, Roy Tony Shaw was convicted for
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000), and sentenced to 250 months in prison.
Shaw appeals, contending the court erred in sustaining the jury’s
verdict because the evidence was insufficient to convict him, and
the court abused its discretion by failing to downwardly depart
from the advisory sentencing guidelines range, resulting in an
unreasonable sentence. Finding no error, we affirm.
Shaw suggests that the evidence was insufficient to
support his felon in possession of a firearm conviction, thus the
district court erred in denying his Fed. R. Crim. P. 29 motion. A
jury’s verdict 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). This Court has
“defined ‘substantial evidence’ as ‘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. Smith, 451 F.3d 209, 216 (4th Cir.) (quoting
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc)), cert. denied, 127 S. Ct. 197 (2006). This Court “must
consider circumstantial as well as direct evidence, and allow the
government the benefit of all reasonable inferences from the facts
proven to those sought to be established.” United States
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v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In evaluating
the 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. Romer, 148 F.3d 359, 364 (4th Cir. 1998). This court
“can reverse a conviction on insufficiency grounds only when the
prosecution’s failure is clear.” United States v. Moye, 454 F.3d
390, 394 (4th Cir.) (internal quotation marks and citation
omitted), cert. denied, 127 S. Ct. 452 (2006).
To prove that Shaw was a felon in possession of a firearm
under 18 U.S.C. § 922(g)(1)(2000), the Government had to prove
that: (1) Shaw previously had been convicted of a crime punishable
by a term of imprisonment exceeding one year; (2) Shaw knowingly
possessed, transported, or received the firearm; and (3) the
possession was in or affecting commerce, because the firearm had
traveled in interstate or foreign commerce. See United States v.
Langley, 62 F.3d 602, 606 (4th Cir. 1995)(en banc). At trial, Shaw
stipulated that he had previously been convicted of a crime
punishable by imprisonment for a term exceeding a year, thus he was
a convicted felon. The parties also stipulated that the firearm
had traveled in interstate commerce. Accordingly, the only element
before the jury was whether Shaw knowingly possessed the firearm.
Two officers testified that they saw Shaw pull a long
shiny metal object out of the waistband of his pants and throw it
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on a nearby roof as he was running away. One officer heard the
object hit the roof. A firearm was recovered from the roof and
there was no evidence that it had been there for a great length of
time. No other unusual objects were on the roof. Based on this
record, there was sufficient evidence of Shaw’s possession of the
firearm, so the district court properly sustained the jury’s guilty
verdict.
Shaw next argues that the district court erred by denying
his request for a departure based on diminished capacity under USSG
§ 5K2.13, thus resulting in an unreasonable sentence under 18
U.S.C. § 3553(a) (2000). We lack authority to review a district
court’s denial of a downward departure unless the court failed to
understand its authority to do so. See United States v. Brewer,
520 F.3d 367 (4th Cir. 2008). Because the district court
understood its authority to depart, but declined to do so on the
facts of this case, we are unable to review its denial of a
downward departure.
Accordingly, we affirm Shaw’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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