UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 01-4207
GIDEON X. MELVIN,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Eastern District of North Carolina, at Wilmington.
                James C. Fox, Senior District Judge.
                             (CR-00-110)

                       Argued: April 5, 2002

                      Decided: May 15, 2002

                Before GREGORY, Circuit Judge,
             HAMILTON, Senior Circuit Judge, and
      Gerald Bruce LEE, United States District Judge for the
        Eastern District of Virginia, sitting by designation.



Affirmed in part, vacated in part, and remanded with instructions by
unpublished per curiam opinion.


                            COUNSEL

ARGUED: Stephen Clayton Gordon, Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. Michael Gordon
James, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: Thomas F. McNamara, Federal Public
2                     UNITED STATES v. MELVIN
Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Gideon Melvin (Melvin) appeals his conviction and sentence for
being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). For
the reasons stated below, we affirm Melvin’s conviction, vacate his
sentence, and remand the case to the district court with instructions
to reconsider Melvin’s motion for a downward departure.

                                  I

   At approximately 1:30 a.m. on December 25, 1999, Joseph Devon
Hill (Hill) and Emma Renee Wright (Wright) were walking on Castle
Street in Wilmington, North Carolina on their way to Wright’s resi-
dence. A few hours earlier, Hill had asked Wright to marry him. Hill
and Wright turned right at the intersection of Castle and Seventh
Streets. The area was well-lit by both street and porch lights.

   As Hill and Wright turned the corner, they saw Melvin, who was
dressed in a light-gray pullover and black jeans, urinating against a
brick building. Upon seeing Melvin urinating, Hill remarked to
Wright, "That’s sad." (J.A. 109). As Hill and Wright continued walk-
ing, Melvin called out to Hill and told Hill that he wanted to "show
[him] something." 

a black revolver as he
approached Hill and Wright. Melvin pressed the revolver against the
left side of Hill’s neck and demanded Hill’s money. When Hill told
Melvin that he did not have any money, Melvin searched Hill’s per-
son and threatened to shoot him. After searching Hill, Melvin got into
                       UNITED STATES v. MELVIN                         3
the front passenger seat of a white Chevrolet Caprice and the car sped
off. Hill observed that the white Chevrolet Caprice was occupied by
four males. During the attempted robbery, Hill did not detect the
smell of alcohol on Melvin’s breath, but Melvin was not breathing
heavily during the encounter.1

   Meanwhile, Wilmington Police Officer Charles Niforos (Officer
Niforos) was dispatched in his marked patrol car to the area of Sev-
enth and Queen Streets in reference to a report of a stolen license
plate. As Officer Niforos was traveling northbound on Seventh Street,
he met a white Chevrolet Caprice, which was moving at a high rate
of speed. As the white Chevrolet Caprice approached Officer Niforos,
he noticed that the car contained multiple black males.

   When Hill and Wright saw Officer Niforos’ patrol car, they
stopped him and provided him with a general description of the man
who attempted to rob Hill, the weapon used in the attempted robbery,
and the get-away car. As Hill spoke to Officer Niforos, Hill and
Wright saw the white Chevrolet Caprice that was used as the get-
away car approaching them, which made a u-turn and sped away. Hill
told Officer Niforos that the car was connected to the attempted rob-
bery. Officer Niforos then pursued the fleeing car.

  The white Chevrolet Caprice went southbound on Seventh Street
and across Dawson Street, where Officer Niforos lost sight of the car.
Officer Niforos continued searching for the car along Seventh Street.
Wilmington Police Officer Jason Commer (Officer Commer), who
was also on patrol, joined Officer Niforos in the search for the white
Chevrolet Caprice.

   A short time later, the officers drove to the Houston Moore housing
area. In the Houston Moore housing area, Officer Niforos spotted the
white Chevrolet Caprice.

  The white Chevrolet Caprice was parked with the engine running
and had three black male occupants. Officer Niforos activated his
  1
   Wright did not stay with Hill during the entire attempted robbery, but
continued walking on Seventh Street. She did, however, look back as she
walked away.
4                     UNITED STATES v. MELVIN
patrol car’s blue lights. In response, the white Chevrolet Caprice sped
off. During the ensuing chase, Officer Niforos remained focused on
the driver and neither passenger obstructed Officer Niforos’ view of
the driver. The chase ended in a well-lit cul-de-sac near 15th Street.
Officer Niforos saw the driver’s side door open and observed "a lot
of movement coming from the driver of the vehicle." (J.A. 170). Offi-
cer Niforos saw a dark object leave the car from the driver’s side door
area and, about the same time, the driver, later identified as Melvin,
fled. Officer Niforos then pursued Melvin on foot.

   Approximately thirty seconds after Officer Niforos pursued Mel-
vin, Wilmington Police Officers Locklear and Woods arrived. Officer
Commer instructed them to assist Officer Niforos. Officer Commer
radioed for additional back-up and stayed behind with the white
Chevrolet Caprice and the two remaining occupants. The two occu-
pants, later identified as Meaghan Omar Canty (Canty) and Thessaur
Dereef (Dereef), attempted to flee. Officer Commer drew his service
revolver and ordered Canty and Dereef to remain inside the car.
Dereef was wearing a beige leather jacket, a white sweatshirt, and
brown pants at the time of his detention.

   Officer Niforos pursued Melvin through a wooded area, through a
drainage system area, into a clear landing, and eventually onto 16th
Street. During the chase, Officer Niforos was joined by Officers
Locklear and Woods. Eventually, Officer Niforos apprehended Mel-
vin. At the time Melvin was apprehended, he was breathing heavily,
and Officer Niforos detected a strong odor of alcohol on Melvin’s
breath. After Melvin was apprehended, arrested, and turned over to
Wilmington Police Sergeant Clemmons, Officer Niforos backtracked
in order to locate any evidence discarded by Melvin. Eventually, Offi-
cer Niforos made his way back to the cul-de-sac where a .38 caliber
revolver was recovered on the ground near the back of the driver’s
side of the white Chevrolet Caprice.

   A short time later, Hill was picked up at his home by a police offi-
cer. Once Hill was inside the police car, the officer said, "We got
somebody. We want to see if this is the person who robbed you."
(J.A. 117). Hill arrived at 16th Street and saw Melvin seated on a curb
under a street light with his hands handcuffed behind his back.
According to Hill, Melvin was wearing the same clothing that he had
                       UNITED STATES v. MELVIN                          5
worn during the attempted robbery. Hill saw Melvin’s face, and with-
out suggestion or prompting by the police officers stated, "That’s him
right there." (J.A. 118).2 During the "show-up," the police officers did
not ask Hill to identify the revolver recovered in the cul-de-sac as the
one used in the attempted robbery, but Hill made that precise identifi-
cation at trial.

   On September 8, 2000, a federal grand jury sitting in the Eastern
District of North Carolina indicted Melvin on one count of being a
felon in possession of a firearm. 18 U.S.C. § 922(g)(1). Melvin
pleaded not guilty, and, prior to trial, he moved to suppress certain
identification evidence. The district court denied Melvin’s motion to
suppress and the case proceeded to trial. On November 15, 2000, the
jury returned a guilty verdict. On January 5, 2001, the district court
denied Melvin’s motion for a new trial. On March 5, 2001, the district
court sentenced Melvin to 262 months’ imprisonment. On March 8,
2001, Melvin filed a timely notice of appeal.

                                    II

    Melvin challenges the district court’s decision to allow Hill to tes-
tify concerning his identifications of Melvin, which occurred: (1)
shortly after the attempted robbery; (2) at the later photographic
lineup; and (3) at trial. According to Melvin, the unduly suggestive
setting in which Hill first identified Melvin as the man who attempted
to rob him (Hill) created a strong likelihood that Hill incorrectly iden-
tified Melvin, not only at the scene of the first identification, but also
at the later photographic lineup and at trial.

   In addressing Melvin’s claim, Supreme Court case law instructs us
to conduct two separate inquiries. First, we ask whether the identifica-
tion procedure leading to Hill’s first identification of Melvin was
impermissibly suggestive. Manson v. Brathwaite, 

, 114
(1977). Second, we ask whether Hill’s first identification of Melvin
  2
    Six months after the attempted robbery, Hill went to the New Hano-
ver County Sheriff’s Office to view a photographic lineup. He identified
Melvin as the man who attempted to rob him from an array of six photo-
graphs, as did Wright on September 7, 2000 from a photographic lineup
at the United States Attorney’s Office
6                      UNITED STATES v. MELVIN
was reliable under the totality of the circumstances. 

unduly suggestive identification procedure may, if the identifica-
tion is reliable, satisfy the dictates of due process, we may proceed
to examine the reliability of the identification without first examining
the suggestiveness of the identification procedure. Holdren v. Legur-
sky, 

, 61-62 (4th Cir. 1994). In evaluating the reliability of
Hill’s first identification of Melvin, we must consider: (1) Hill’s
opportunity to view Melvin at the time of the attempted robbery; (2)
Hill’s degree of attentiveness at the time of the attempted robbery; (3)
the accuracy of Hill’s description of Melvin; (4) Hill’s level of cer-
tainty when he identified Melvin as the individual who attempted to
rob him; and (5) the length of time between the attempted robbery and
the confrontation. Neil v. Biggers, 

, 199 (1972).

   Assuming, arguendo, that the identification procedure leading to
Hill’s first identification of Melvin was impermissibly suggestive,
Melvin is entitled to no relief because application of the Neil factors
leads to the inescapable conclusion that Hill’s first identification of
Melvin was reliable. Hill had ample opportunity to view Melvin dur-
ing the commission of the attempted robbery. The area was well-lit
by both porch and street lights and nothing obstructed Hill’s view of
Melvin. Because he was the victim of a serious crime, rather than a
mere casual observer of such crime, Hill understandably paid close
attention to Melvin. In addition, the description of Melvin that Hill
provided to Officer Niforos after the attempted robbery was reason-
ably accurate. Hill provided a general description of Melvin, the
weapon used in the attempted robbery, and the get-away car. After the
white Chevrolet Caprice that was used as the get-away car returned
to the scene, made a u-turn, and sped away, Hill told Officer Niforos
that the car was connected to the attempted robbery. When Officer
Niforos encountered the white Chevrolet Caprice in the cul-de-sac,
Melvin was seen fleeing from the car. Finally, a short time after the
attempted robbery, Hill, without provocation, positively identified
Melvin as the man who attempted to rob him. Under these circum-
stances, we must conclude that Hill’s first identification of Melvin
was reliable.

                                  III

  Melvin argues that there is insufficient evidence in the record to
support his conviction for being a felon in possession of a firearm.
                       UNITED STATES v. MELVIN                         7
We review a jury verdict for sufficiency of the evidence by determin-
ing whether there is substantial evidence, when viewed in the light
most favorable to the government, to support the verdict. Glasser v.
United States, 

, 80 (1942). In determining whether the
evidence in the record is substantial, we examine whether there is evi-
dence that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a rea-
sonable doubt. United States v. Burgos, 

, 862 (4th Cir.
1996) (en banc). We must consider circumstantial as well as direct
evidence and allow the government the benefit of all reasonable infer-
ences from the facts proven to those sought to be established. United
States v. Tresvant, 

, 1021 (4th Cir. 1982).

   To prove a violation of § 922(g)(1), the government must prove the
following elements beyond a reasonable doubt: (1) that the defendant
previously had been convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) that the defendant knowingly
possessed the firearm; and (3) the possession was in or affecting com-
merce, because the firearm had traveled in interstate or foreign com-
merce at some point in its existence. United States v. Langley, 

, 606 (4th Cir. 1995) (en banc). At trial, the parties stipulated that
the first and third elements were satisfied; thus, the only question for
the jury (and for this court on appeal) was whether Melvin knowingly
possessed the revolver recovered in the cul-de-sac.

   The gist of Melvin’s sufficiency argument is that certain inconsis-
tencies in the trial record render the evidence insufficient. Melvin
argues that, because Hill testified that Melvin got into the front pas-
senger seat of the white Chevrolet Caprice after the attempted rob-
bery, but was later arrested as the driver of the car, Melvin was
misidentified as the possessor of the revolver during the attempted
robbery. In making this argument, Melvin points out that, at the time
of the attempted robbery, Hill indicated that there were three other
individuals in the white Chevrolet Caprice other than Melvin, but, at
the time Melvin was apprehended, only two other individuals were in
the car. Melvin’s argument overlooks the fact that Officer Niforos lost
sight of the white Chevrolet Caprice for a short period of time. It is
obvious that the jury concluded that, before the time Officer Niforos
encountered Melvin at the Houston Moore housing area, one of the
occupants left the white Chevrolet Caprice (presumably because the
8                      UNITED STATES v. MELVIN
departing occupant wanted no part in Melvin’s criminal conduct) and
Melvin had assumed the responsibility of driving the car.

   Melvin also argues that, because Hill did not smell alcohol on Mel-
vin’s breath during the attempted robbery, but Officer Niforos did
smell alcohol on Melvin’s breath at the time of his arrest, Melvin was
misidentified as the possessor of the revolver during the attempted
robbery. However, it was entirely reasonable for the jury to conclude,
on the one hand, that Hill did not smell alcohol on Melvin’s breath
during the attempted robbery because Melvin was not breathing heav-
ily and, on the other hand, that Officer Niforos did detect alcohol on
Melvin’s breath when Melvin was apprehended because Melvin was
breathing heavily after the long chase on foot.

   In our view, the evidence in the record is more than sufficient to
support the jury’s verdict. At trial, Hill testified that Melvin was the
person who attempted to rob him while armed with a black revolver.
The area where Melvin attempted to rob Hill was well-lit. Hill and
Wright saw Melvin’s face prior to the attempted robbery. Hill identi-
fied the white Chevrolet Caprice as the get-away car in which the
individual who attempted to rob him fled. This same white Chevrolet
Caprice was the car Officer Niforos saw on Seventh Street and the
one he saw speed away from him and Officer Commer at the Houston
Moore housing area. At the cul-de-sac, Officer Niforos saw a dark
object leave the car from the driver’s side door area and, about the
same time, the driver, later identified as Melvin, fled. The dark object
was recovered and was identified by Hill at trial as the revolver used
in the attempted robbery of him. In light of this evidence, we must
conclude that there is substantial evidence in the record to support the
jury’s finding that Melvin knowingly possessed the revolver recov-
ered in the cul-de-sac.

                                  IV

   Melvin argues that the district court abused its discretion in deny-
ing his motion for a new trial. In support of his argument, Melvin
alleges that a new trial was warranted based on newly discovered evi-
dence that Dereef possessed the firearm during the attempted robbery
of Hill. According to Melvin, after the trial, Dereef contacted Mel-
                       UNITED STATES v. MELVIN                         9
vin’s counsel and claimed ownership and sole possession of the
revolver recovered in the cul-de-sac.

   The district court’s decision to deny Melvin’s motion for a new
trial is reviewed for an abuse of discretion. United States v. Rhynes,

, 360 (4th Cir. 1999) (en banc). A motion for a new trial
based on newly discovered evidence should be granted only if: (1) the
evidence relied on is, "in fact, newly discovered"; (2) there are facts
"alleged from which the court may infer due diligence on the part of
the movant"; (3) "the evidence relied upon [is] not merely cumulative
or impeaching"; (4) "the evidence [is] material to the issues
involved"; and (5) the evidence is of such a nature that it would
"probably result in [an] acquittal at a new trial." United States v.
Chavis, 

, 793 (4th Cir. 1989). We noted in Chavis that,
unless the answer to each of these inquiries is in the affirmative, a
new trial is not warranted. 

did not abuse its discretion in denying Melvin’s
motion for a new trial because, even assuming, arguendo, that Melvin
can satisfy the third and fourth prongs of the Chavis test, he cannot
meet the first, second, and fifth prongs. With regard to the first and
second prongs, Melvin did not call Dereef as a witness, despite seek-
ing and securing the issuance of a writ of habeas corpus ad testifi-
candum for Dereef’s appearance at trial. Although Melvin called
Canty as a witness at trial, he did not call Dereef. Where counsel fails
to call a witness who is available at trial, the testimony from this wit-
ness cannot be considered newly discovered evidence. United States
v. Beasley, 

, 339 (5th Cir. 1978) (The decision not to call
a witness, whether wise or not, is "a deliberate and strategic one,"
and, thus, "[t]he defendant is not entitled to a new trial so that he may
employ a different strategy."). By the same token, it cannot be said
that Melvin exercised due diligence in discovering the evidence as he
failed to call Dereef as a witness. To hold otherwise would encourage
defendants to call some witnesses at trial but not others in hopes that
the testimony of the witnesses not called at trial can be used later to
support new trial motions.

   With regard to the fifth prong of the Chavis test, Hill and Wright
each testified that Melvin attempted to rob Hill at gunpoint. Hill also
testified that the revolver recovered in the cul-de-sac was the same
10                      UNITED STATES v. MELVIN
revolver Melvin possessed during the attempted robbery. Critical por-
tions of Hill’s testimony were corroborated by Officer Niforos, and
his testimony clearly suggested that Melvin possessed the revolver
recovered in the cul-de-sac. In light of this evidence, we must con-
clude that Dereef’s testimony probably would not result in an acquit-
tal at a new trial.

                                    V

   Since the district court found that Melvin had three prior qualifying
felony convictions, Melvin was sentenced as an armed career crimi-
nal, U.S. Sentencing Guidelines Manual (USSG) § 4B1.4. Because
Melvin used or possessed the revolver in this case in connection with
a crime of violence (the attempted robbery of Hill), Melvin was
assigned an offense level of thirty-four pursuant to USSG
§ 4B1.4(b)(3)(A). Had Melvin not possessed the revolver in connec-
tion with the attempted robbery of Hill, Melvin’s offense level would
have been thirty-three pursuant to USSG § 4B1.4(b)(3)(B). Melvin
contends that, under the rule announced in Apprendi v. New Jersey,

(2000), he is entitled to be resentenced at offense level
thirty-three because the necessary facts needed to apply USSG
§ 4B1.4(b)(3)(A) were neither charged in the indictment nor submit-
ted to the jury. This argument is without merit.

   In United States v. Kinter, 

(4th Cir. 2000), cert.
denied, 

(2001), we held that, where a sentencing
enhancement pursuant to the Sentencing Guidelines did not extend a
defendant’s sentence beyond the maximum prescribed by the United
States Code, the relevant facts supporting the enhancement did not
have to be submitted to the jury or proved beyond a reasonable doubt.

this case, Melvin was sentenced to 262 months’
imprisonment, well within § 924(e)(1)’s maximum sentence of life.3
  3
   A conviction under § 922(g)(1) carries a maximum sentence of ten
years, 18 U.S.C. § 924(a)(2), but if the defendant has three prior qualify-
ing felony convictions, the Armed Career Criminal Act, 

into play and provides a minimum sentence of fifteen years and
a maximum sentence of life.
                       UNITED STATES v. MELVIN                       11
Therefore, the district court’s application of USSG § 4B1.4(b)(3)(A)
did not run afoul of Apprendi.4

   In a related argument, Melvin argues that, under Apprendi, the
determination of whether he had three prior qualifying felony convic-
tions was a factual matter that should have been submitted to the jury
and proved beyond a reasonable doubt. The essence of this argument
is that Apprendi overruled the holding of Almendarez-Torres v.
United States, 

, 235 (1998), that prior felony convictions
which trigger enhanced sentences are sentencing enhancements rather
than elements of the offense. Unfortunately for Melvin, we recently
rejected this argument in United States v. Sterling, 

(4th
Cir. 2002), where we held that the holding of Almendarez-Torres was
not overruled by Apprendi and, consequently, Apprendi did not affect
enhanced sentences under § 924(e)(1). 

.

                                  VI

   Melvin also challenges the district court’s denial of his motion for
a downward departure. Melvin argues that the district court errone-
ously believed that it lacked discretion to depart downward from his
criminal history category (VI) given his classification as an armed
career criminal.

   We lack authority to review a decision of the district court not to
depart from the applicable guideline range when the decision rests
upon a determination that a departure is not warranted. United States
v. Brock, 

, 33 (4th Cir. 1997). However, if the district
court decides not to depart because it believes it lacks legal authority
to depart, we may review that decision. 

our review
is de novo. United States v. Hall, 

, 863 (4th Cir. 1992).

   In our opinion, it is unclear whether the district court recognized
it had the authority to depart given Melvin’s classification as an
armed career criminal, even if his criminal history category signifi-
cantly overrepresented the seriousness of his criminal history. See
  4
   We have reviewed Melvin’s argument that the district court’s applica-
tion of USSG § 4B1.4(b)(3)(A) violates the principle of federalism and
find it to be without merit.
12                      UNITED STATES v. MELVIN
USSG § 4A1.3, p.s; see also United States v. Pearce, 

,
497 (4th Cir. 1999) (noting that a sentencing court may depart where
the defendant’s career offender status overstates the seriousness of the
defendant’s past conduct and that such departures are reserved for the
truly unusual case); United States v. Adkins, 

, 952 (4th
Cir. 1991) (same). On the one hand, the district court seemed to rec-
ognize its authority to depart, even though Melvin was classified as
an armed career criminal, if Melvin’s criminal history significantly
overstated the seriousness of his past criminal conduct:

     [T]he court can find that the criminal history category over-
     emphasizes or overstates the criminal history of a particular
     defendant. And I’m thinking about finding that as far as the
     armed career status. To the same effect, I’m trying to see
     what sentence I could impose if I did that.

(J.A. 350). On the other hand, the district court seemed to suggest that
it did not have the authority to depart since Melvin was classified as
an armed career criminal, even if it believed Melvin’s criminal history
significantly overstated the seriousness of the his past criminal con-
duct:

     [I]t seems to me that if the court has the authority to depart
     downwardly on a criminal history category by saying that
     the criminal history category overemphasizes or overstates
     the actual criminal history of the individual, that the court
     should have the same discretion with regard to the armed
     career criminal status. I don’t [know] of any case law to that
     effect. So, of course, you would be in the position of defend-
     ing the court’s judgment.

’s apparent confusion concerning its authority to
depart downward given Melvin’s armed career criminal status is fur-
ther illustrated by the district court’s later comment that it "really [did
not] know . . . the answer" to the question of whether it had the
authority to depart downward given Melvin’s armed career criminal
status. (J.A. 351). Ultimately, the district court sentenced Melvin to
262 months’ imprisonment on the basis that the Sentencing Guide-
lines mandated the sentence.
                       UNITED STATES v. MELVIN                       13
   In our view, the district court’s ruling is ambiguous as to the basis
for its refusal to depart downward from Melvin’s criminal history cat-
egory. Under these circumstances, we believe a remand to the district
court is appropriate to allow the district court to reconsider Melvin’s
motion for a downward departure.5

                                  VII

   For the reasons stated herein, we affirm Melvin’s § 922(g)(1) con-
viction, vacate his sentence, and remand his case to the district court
with instructions to reconsider his motion for a downward departure.6

                         AFFIRMED IN PART, VACATED IN PART,
                          AND REMANDED WITH INSTRUCTIONS
  5
    We express no opinion on the merits of Melvin’s motion for a down-
ward departure.
  6
    On March 29, 2002, we granted Melvin’s motion for leave to file a
supplemental brief and accepted for filing his supplemental brief. We
have reviewed the arguments raised in the supplemental brief and find
them to be without merit.