United States v. Miller , 38 F. App'x 161 ( 2002 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                              No. 01-4950
    BRIAN KEITH MILLER,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Middle District of North Carolina, at Durham.
    James A. Beaty, Jr., District Judge.
    (CR-00-382)
    Submitted: April 18, 2002
    Decided: April 29, 2002
    Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
    Federal Public Defender, Greensboro, North Carolina, for Appellant.
    Anna Mills Wagoner, United States Attorney, Robert A. J. Lang,
    Assistant United States Attorney, Greensboro, North Carolina, for
    Appellee.
    2                      UNITED STATES v. MILLER
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Brian Keith Miller was convicted after a jury trial of being a felon
    in possession of a firearm, in violation of 
    18 U.S.C.A. § 922
    (g)(1)
    (West 2000). On appeal, he challenges the sufficiency of the evidence
    supporting his conviction and the two-level enhancement imposed
    under U.S. Sentencing Guidelines Manual § 2K2.1(b)(4) (2000) for
    possession of a stolen firearm. We affirm.
    Miller first claims that there was insufficient evidence that he pos-
    sessed a firearm. In reviewing the sufficiency of the evidence chal-
    lenge on direct review, the relevant standard is whether the record
    contains "substantial evidence, taking the view most favorable to the
    Government, to support" the jury’s finding. Glasser v. United States,
    
    315 U.S. 60
    , 80 (1942). Moreover, an appellate court’s reversal of a
    conviction on grounds of insufficient evidence should be confined to
    cases where the prosecution’s failure is clear. United States v. Jones,
    
    735 F.2d 785
    , 791 (4th Cir. 1984).
    Here, Marilyn Kirk and Amanda Martin testified that Miller pos-
    sessed a gun at a gas station and inside Kirk’s home. In addition, an
    officer seized a loaded gun from under a rug in close proximity to
    Miller. Undoubtedly, this testimony is sufficient to prove possession.
    Miller is essentially arguing that the witnesses’ testimony was not
    credible. However, this determination is within the province of the
    jury, and we will not overturn it. See United States v. Beidler, 
    110 F.3d 1064
    , 1070 (4th Cir. 1997) (jury is sole judge of witness credi-
    bility).
    Next, Miller asserts that the district court improperly increased his
    sentence under USSG § 2K2.1(b)(4) because there was insufficient
    proof that the firearm was stolen. However, the owner of the gun tes-
    tified that it was indeed stolen. Again, Miller’s claim essentially chal-
    UNITED STATES v. MILLER                         3
    lenges the owner’s credibility. However, the district court’s decision
    to credit this testimony was not clearly erroneous. See United States
    v. Puckett, 
    61 F.3d 1092
    , 1095 (4th Cir. 1995) (noting that resolution
    of factual dispute based on credibility of witnesses is not clearly erro-
    neous).
    Thus, we affirm Miller’s conviction and sentence. We dispense
    with oral argument, because the facts and legal contentions are ade-
    quately presented in the material before the court and argument would
    not aid the decisional process.
    AFFIRMED
    

Document Info

Docket Number: 01-4950

Citation Numbers: 38 F. App'x 161

Judges: Diana, Gregory, Gribbon, Motz, Per Curiam, Traxler

Filed Date: 4/29/2002

Precedential Status: Non-Precedential

Modified Date: 8/6/2023