United States v. Nesbitt ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4006
RICHARD MELVIN NESBITT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CR-95-350)
Submitted: April 1, 1997
Decided: July 30, 1997
Before ERVIN, NIEMEYER, and MICHAEL, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Alfred William Walker Bethea, Assis-
tant United States Attorney, Florence, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Richard M. Nesbitt was convicted by a jury of possessing a firearm
as a convicted felon in violation of 18 U.S.C. § 922(g)(1) (1994).
Nesbitt filed a timely appeal, and his counsel filed a formal brief pur-
suant to Anders v. California, 386 U.S. 738 (1967), in which he certi-
fied that there were no meritorious issues for appeal. Nonetheless, he
presented two issues: whether sufficient evidence supported the jury's
conviction and whether the court erred by not departing downward
from the applicable guideline range. The time for filing a supplemen-
tal brief has passed, and Nesbitt has not responded. While we affirm
Nesbitt's conviction, we vacate his sentence and remand for resen-
tencing.
Initially, Nesbitt claims that the evidence was insufficient to sup-
port the jury's conviction. This court reviews sufficiency of the evi-
dence deferentially, sustaining the verdict if the evidence, viewed in
the light most favorable to the government, is such that a rational trier
of fact could find guilt beyond a reasonable doubt. Glasser v. United
States, 315 U.S. 60, 80 (1942). The essential elements of the 18
U.S.C. § 922(g)(1) offense are: (1) knowing possession of a firearm,
(2) in or affecting commerce, (3) by one who has been convicted of
a crime punishable by more than one year in prison, (4) whose civil
rights have not been restored. 18 U.S.C. §§ 921, 922 (1994); see
United States v. Essick, 935 F.2d 28, 29-31 (4th Cir. 1991).
The evidence here easily satisfied the Glasser test of sufficiency as
to each of the elements. The parties stipulated that Nesbitt had previ-
ously been convicted of a crime punishable by imprisonment for a
term exceeding one year. The firearm at issue was manufactured in
New York, and had to travel in interstate commerce to reach South
Carolina, where it was possessed by Nesbitt. Further, there was sub-
stantial evidence to support the knowing possession element. The evi-
dence showed that Nesbitt purchased the firearm at issue from
William Anthony Elliott and sold it to Charles Casselman approxi-
mately a year later. Accordingly, we affirm Nesbitt's conviction.
Nesbitt next contends that the district court abused its discretion by
not departing downward from his guideline range. A district court's
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discretionary decision not to depart is not reviewable unless it is
based on a mistaken belief that the court lacks the legal authority to
depart. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
The district court correctly found that because of Nesbitt's three
predicate offenses, it could not impose a sentence below the statu-
torily mandated fifteen-year sentence (180) months. 18 U.S.C.
§ 924(e) (1994). However Nesbitt requested a departure from his
guideline range based on an overstated criminal history because the
predicate offenses were remote in time. Based on our review of the
sentencing transcript, we find that the district court erroneously
believed that it did not have the legal authority to depart from the bot-
tom of Nesbitt's guideline range, 188 months. See United States Sen-
tencing Commission, Guidelines Manual, § 4A1.3, p.s. (Nov. 1994).
Accordingly, we vacate Nesbitt's sentence and remand for resentenc-
ing. On remand, the court should consider whether there are any meri-
torious grounds for departing downward from Nesbitt's guideline
range.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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