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United States v. McGowan, 07-4751 (2008)

Court: Court of Appeals for the Fourth Circuit Number: 07-4751 Visitors: 45
Filed: Mar. 03, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4751 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES RODRIKUS MCGOWAN, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (6:06-cr-00989-HMH) Submitted: February 28, 2008 Decided: March 3, 2008 Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. Benjamin T. Step
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4751



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JAMES RODRIKUS MCGOWAN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:06-cr-00989-HMH)


Submitted:   February 28, 2008            Decided:   March 3, 2008


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Following   a   jury   trial,    James    Rodrikus    McGowan    was

convicted of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g) (2000).                  The district court

sentenced McGowan to 78 months in prison. McGowan timely appealed.

McGowan’s attorney has filed a brief in accordance with Anders v.

California, 
386 U.S. 738
(1967), identifying no meritorious grounds

for appeal but questioning whether the district court erred by

denying McGowan’s Fed. R. Crim. P. 29 motion for judgment of

acquittal.    McGowan was advised of his right to file a pro se

supplemental brief but he has not done so.

          We review de novo a district court’s decision to deny a

Rule 29 motion for judgment of acquittal.          United States v. Smith,

451 F.3d 209
, 216 (4th Cir.), cert. denied, 
127 S. Ct. 197
(2006).

Where, as here, the motion was based on a claim of insufficient

evidence, “[t]he verdict of a jury must be sustained if there is

substantial   evidence,   taking    the    view   most    favorable   to   the

Government, to support it.” Glasser v. United States, 
315 U.S. 60
,

80 (1942).    In evaluating the sufficiency of the evidence, this

court “do[es] not review the credibility of the witnesses and

assume[s] the jury resolved all contradictions in the testimony in

favor of the government.”    United States v. Sun, 
278 F.3d 302
, 313

(4th Cir. 2002).   The court “must consider circumstantial as well

as direct evidence, and allow the government the benefit of all


                                   - 2 -
reasonable inferences from the facts proven to those sought to be

established.”    United States v. Tresvant, 
677 F.2d 1018
, 1021 (4th

Cir. 1982).

            In order to convict McGowan under § 922(g)(1), the

Government had to establish that (1) McGowan had been previously

convicted of a felony, (2) McGowan knowingly possessed the firearm,

and (3) the possession was in or affecting interstate or foreign

commerce.     See United States v. Gilbert, 
430 F.3d 215
, 218 (4th

Cir. 2005), cert. denied, 
127 S. Ct. 58
(2006). McGowan stipulated

to the first element at trial.    Viewing the evidence in the light

most favorable to the Government and resolving all contradictions

in the testimony in favor of the Government, the evidence showed

that McGowan dropped an object in the bushes.    When the object was

investigated, it turned out to be a stocking cap wrapped around

gloves and a pistol.     McGowan’s DNA was on the gloves, and the

firearm had traveled in interstate commerce.         In addition, a

witness had seen McGowan with a firearm earlier in the day.       We

conclude that jurors could reasonably convict McGowan on this

evidence.

            In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.        We

therefore affirm McGowan’s conviction and sentence.       This court

requires that counsel inform his client, in writing, of his right

to petition the Supreme Court of the United States for further


                                 - 3 -
review.     If the client requests that a petition be filed, but

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 the client.       We dispense 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




                                      - 4 -

Source:  CourtListener

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