United States v. Donald Smith , 295 F. App'x 109 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2043
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Donald “Baby D” Smith, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: September 23, 2008
Filed: October 6, 2008
___________
Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
___________
PER CURIAM.
A jury convicted Donald Gregory Smith, Jr., of being a felon in possession of
a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court1 imposed a 100-month
sentence. Smith appeals, claiming insufficiency of evidence and sentencing error.
Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
Conviction under 18 U.S.C. § 922(g)(1) requires that the defendant “had been
previously convicted of a crime punishable by imprisonment of more than one year,
that he knowingly possessed a firearm, and that the firearm had been in or affected
interstate commerce.” United States v. Bradley, 473 F.3d 866, 867 (8th Cir. 2007).
Smith stipulated that he was a felon and that the weapon traveled in interstate
commerce; the only issue is possession. Three government witnesses testified that
Smith possessed a Norico SKS rifle. Two other witnesses stated that Smith admitted
possessing the rifle. In a taped interview, Smith acknowledged being present where
witnesses placed him. This court “will uphold the verdict if there is any interpretation
of the evidence that could lead a reasonable-minded jury to find the defendant guilty
beyond a reasonable doubt.” United States v. Garcia-Hernandez, 530 F.3d 657, 661
(8th Cir. 2008). While Smith attacks the credibility of the government witnesses, “[i]t
is the task of the jury to evaluate a witness’s credibility; attacks on the sufficiency of
the evidence based on the witnesses’ credibility are rarely an appropriate ground for
reversal.” United States v. Mitchell, 528 F.3d 1034, 1041 (8th Cir. 2008). Although
the jury acquitted Smith of two related counts of possessing weapons, a jury may
rationally convict on one count while acquitting on others. Sufficient evidence
supports the conviction for possessing the Norico SKS rifle.
Smith also argues that the district court erred by not granting a downward
variance. Determining the Guideline range to be 100-to-125 months, the court
imposed a 100-month sentence, followed by three years of supervised release. Smith
does not assert that the court miscalculated the range or impermissibly treated it as
presumptively reasonable. Rather, he contends that the court failed to give
appropriate weight to his troubled childhood, drug addiction, responsibility for minor
children, and need for education; he also requests a lower sentence due to the nature
and circumstances of the offense and the need to avoid unwarranted sentence
disparities. This court reviews the district court’s sentence for abuse of discretion.
United States v. Gall, --- U.S. ----, 128 S. Ct. 586, 591 (2007); United States v. Shy,
538 F.3d 933, 937 (8th Cir. 2008), citing Gall, supra. At sentencing, the court
-2-
listened to Smith’s arguments and considered each of the 18 U.S.C. § 3553(a) factors.
The district court did not abuse its discretion when sentencing Smith.
The judgment is affirmed.
______________________________
-3-