US v. Wayne Wilson

Filing 920090424

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4331

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WAYNE DOUGLAS WILSON, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:07-cr-00057-F-l)

Submitted:

March 25, 2009

Decided:

April 24, 2009

Before KING and Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

William L. Davis, III, Lumberton, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Wayne Douglas Wilson was convicted after a jury trial of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced to 96 months in prison. Wilson timely appealed. Counsel for Wilson filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal. Wilson was given an

opportunity to file a pro se supplemental brief, but has not done so. Finding no reversible error, we affirm. We have reviewed the record and conclude the district court did not err in denying trial counsel's motion for judgment of acquittal alleging insufficiency of the evidence. This court

reviews de novo a district court's denial of a Fed. R. Crim. P. 29 motion. 2005). guilty United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

In conducting such a review, the court must sustain a verdict to if, the viewing the evidence the in the is light most by

favorable

prosecution,

verdict

supported

substantial evidence.

United States v. Burgos, 94 F.3d 849, 862 Substantial evidence is "evidence

(4th Cir. 1996) (en banc).

that a reasonable finder of fact could accept as adequate . . . to support a conclusion of defendant's guilt beyond a reasonable doubt." United States v. Osborne, 514 F.3d 377, 385 (4th Cir.)

(internal quotation marks and citation omitted), cert. denied, 2

128 S. Ct. 2525 (2008).

In evaluating the sufficiency of the

evidence, we do not review the credibility of the witnesses and assume that the jury resolved all contradictions in the

testimony in favor of the Government.

United States v. Brooks,

524 F.3d 549, 563 (4th Cir.), cert. denied, 129 S. Ct. 519 (2008). To sustain a conviction for 18 U.S.C. § 922(g)(1), the Government must prove: convicted exceeding of one a crime year; "(1) the defendant previously had been punishable (2) or the by a term of imprisonment possessed, (3) the

defendant the

knowingly firearm;

transported,

shipped,

received,

and

possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce." United States v. Here, the

Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).

Government and counsel stipulated to the facts that Wilson had been previously convicted of a felony and that his right to possess a firearm had not been restored. that they observed Wilson with the Two officers testified in his hand and

firearm

Wilson also made a statement to police confirming that he had the gun. the Finally, the requisite interstate commerce element of was established by evidence the firearm and

offense

ammunition were manufactured in Ohio, Illinois, and Nebraska, and were recovered in North Carolina. Because the evidence of

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Wilson's guilt was overwhelming, the district court did not err in denying the motion for judgment of acquittal. Further, a review of the sentencing transcript and the presentence sentencing. must investigation ("PSR") report reveals no error in

When determining a sentence, the district court the appropriate advisory guidelines range and

calculate

consider it in conjunction with the factors set forth in 18 U.S.C. § 3553(a) (2006). 596 (2007). Gall v. United States, 128 S. Ct. 586,

Appellate review of a district court's imposition

of a sentence, "whether inside, just outside, or significantly outside the [g]uidelines range," is for abuse of discretion. Id. at 591. Sentences within the applicable guidelines range United

may be presumed by the appellate court to be reasonable. States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

The district court followed the necessary procedural steps in sentencing Wilson, appropriately treating the

guidelines as advisory, properly calculating and considering the applicable guidelines range, and weighing the relevant § 3553(a) factors. The court adopted the PSR and found that, in light of

Wilson's significant criminal history, a 96-month sentence was appropriate. greater than Furthermore, the applicable Wilson's sentence, range which and is no the

guidelines

below

statutory maximum of ten years, 18 U.S.C. § 924(a)(2) (2006), may be presumed reasonable. Thus, we conclude that the district 4

court

did

not

abuse

its

discretion

in

imposing

the

chosen

sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. This court

requires that counsel inform Wilson, in writing, of the right to petition review. the If Supreme Wilson Court of the that United a States be for further but

requests

petition

filed,

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 Wilson. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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