United States v. Morrison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4235
ALBERT F. MORRISON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CR-00-10089)
Submitted: August 20, 2001
Decided: September 11, 2001
Before WILKINS, LUTTIG, TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John P. Bradwell, SHORTRIDGE & SHORTRIDGE, Norton, Vir-
ginia, for Appellant. Ruth E. Plagenhoef, United States Attorney, Eric
M. Hurt, Assistant United States Attorney, Abingdon, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MORRISON
OPINION
PER CURIAM:
A jury convicted Albert F. Morrison of possession of a firearm by
a convicted felon. On appeal, he alleges that 18 U.S.C. § 922(g)(1)
(1994) is unconstitutional; the evidence was insufficient to support
the finding of guilty; the district court erroneously admitted the testi-
mony of an expert witness; and the court erred by departing upward
under USSG § 4A1.3, p.s.1 Finding no reversible error, we affirm.
The basic facts of this case are undisputed. Morrison, a convicted
felon, pawned a rifle at a pawn shop in Weber City, Virginia. Morri-
son claimed that he performed this service for his brother-in-law, who
allegedly needed money to buy groceries and to pay bills.2
Morrison first alleges that Congress exceeded its authority under
the Commerce Clause in enacting § 922(g)(1), relying primarily upon
United States v. Lopez, 514 U.S. 549 (1995), and United States v.
Morrison, 529 U.S. 598 (2000). This claim has been considered and
rejected by this court. United States v. Gallimore, 247 F.3d 134, 138
(4th Cir. 2001); United States v. Nathan, 202 F.3d 230, 234 (4th Cir.),
cert. denied, 529 U.S. 1123 (2000).
The only issue at trial was whether the firearm in question traveled
in interstate commerce. Morrison alleges that the evidence on this ele-
ment was insufficient because the Government’s expert failed to
exclude the possibility that the rifle was manufactured in Virginia.
We disagree.
On direct appeal of a criminal conviction, a "verdict must be sus-
tained if there is substantial evidence, taking the view most favorable
1
U.S. Sentencing Guidelines Manual (2000). This section allows the
sentencing court to depart upward from the normal sentencing range
when the defendant’s criminal history category does not adequately
reflect the seriousness of his past criminal behavior or the likelihood that
he will commit other crimes.
2
According to the trial testimony, Morrison’s brother-in-law did not
have a driver’s license, which was necessary to complete the transaction.
UNITED STATES v. MORRISON 3
to the Government, to support it." Glasser v. United States, 315 U.S.
60, 80 (1942). In the present case, the expert testified that, based on
his research and experience, the rifle was manufactured in New
Hampshire. He further testified that the manufacturer only had plants
in New Hampshire, Connecticut,3 and Arizona and that, in his sixteen
years of experience, he had never come across any information sug-
gesting that the company manufactured firearms in Virginia. It was
the jury’s responsibility to resolve any conflicts in the testimony,
United States v. Biedler, 110 F.3d 1064, 1067 (4th Cir. 1997), and the
above evidence, if believed by the jury, was sufficient to find that the
rifle traveled in interstate commerce.
In a related issue, Morrison claims that the district court should
have excluded the expert’s testimony because he could not state with
one hundred percent certainty that the rifle was not manufactured in
Virginia. We review the district court’s decision to admit the expert’s
testimony for abuse of discretion and find none. Bendi v. McNeil-
P.P.C., 66 F.3d 1378, 1384 (4th Cir. 1995). As discussed above, the
expert testified concerning the location of the manufacturer’s plants
and that he had never heard of the company having a facility in Vir-
ginia, especially at the time this particular rifle was made.4 Because
there was a legitimate basis for the expert’s opinion, the district court
did not err in admitting his testimony.
We review the district court’s decision to depart upward for an
abuse of discretion and find none. United States v. Hairston, 96 F.3d
102, 105 (4th Cir. 1996). Contrary to Morrison’s assertions, his con-
duct was exactly the type envisioned by the Commission, and we find
that the district court properly considered the factors outlined in
USSG § 4A1.3, p.s. In addition to the sheer number of criminal his-
tory points,5 the evidence at sentencing showed that Morrison had a
long history of serious criminal activity, involving offenses of a simi-
lar nature. The district court found that this suggested a greater likeli-
3
Although the company produced firearms at the Connecticut facility
many years ago, it no longer does so. The company now uses this loca-
tion solely as its headquarters.
4
The rifle was approximately ten years old.
5
Morrison’s thirty-one criminal history points were more than double
the number required for Criminal History Category VI.
4 UNITED STATES v. MORRISON
hood of recidivism. As a result, we find that the record supports the
court’s decision to depart upward.
We further find that the extent of the departure was reasonable.
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). The dis-
trict court departed upward four levels within Category VI.6 The court
stated that it followed the "approved method" for departing upward,
"expressly considered all intervening levels," and found these levels
to be "inadequate under the particular circumstances of this particular
case." (JA at 67-68). We find that these statements sufficiently com-
ply with Rusher.7
We therefore affirm Morrison’s conviction and sentence. We dis-
pense 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
6
The Government requested a five-level increase.
7
Morrison argues that the district court should have conducted its
level-by-level analysis on the record. He cites no cases which impose this
requirement, nor could we find any.