Filed: Sep. 16, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4152 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BRANDON ANTHONY COLBERT, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:08-cr-00168-JAB-2) Submitted: August 4, 2010 Decided: September 16, 2010 Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished p
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4152 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BRANDON ANTHONY COLBERT, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:08-cr-00168-JAB-2) Submitted: August 4, 2010 Decided: September 16, 2010 Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished pe..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4152
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRANDON ANTHONY COLBERT,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00168-JAB-2)
Submitted: August 4, 2010 Decided: September 16, 2010
Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, L.L.P.,
Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Robert A. J. Lang, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Anthony Colbert was found guilty by a jury of
being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006), and was
sentenced to 120 months in prison. Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that after a review of the record, he has found no
meritorious issues for appeal. The Anders brief nonetheless
challenges whether there was sufficient evidence to support the
jury’s verdict. Colbert filed a pro se supplemental brief, also
arguing that the evidence was insufficient to support his
conviction, and asserting that the jury improperly inferred his
guilt because another individual took responsibility for
possessing the weapon underlying the charge for which Colbert
was convicted. The Government has filed a responsive brief,
arguing that the district court correctly denied Colbert’s Rule
29 motion and that Colbert’s arguments are “no more than a
request to this court to overturn the credibility and
believability determinations made by the jury.” Concluding that
no reversible error occurred, we affirm.
First, we uphold the jury’s verdict. This court
reviews the denial of a Fed. R. Crim. P. 29 motion de novo. See
United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
When a Rule 29 motion was based on a claim of insufficient
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evidence, the jury’s verdict must be sustained “if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Abu Ali, 528 F.3d
210, 244 (4th Cir. 2008) (internal quotation marks, brackets and
citations omitted). This court “ha[s] defined ‘substantial
evidence’ as evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.”
Alerre, 430 F.3d
at 693 (internal quotation marks and citations omitted).
When reviewing the sufficiency of the evidence, this
court “must consider circumstantial as well as direct evidence,
and allow the government the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982) (citations omitted). The court may not weigh
the evidence or review the credibility of the witnesses. See
United States v. Allen,
491 F.3d 178, 185 (4th Cir. 2007).
Thus, “if the evidence supports different, reasonable
interpretations, the jury decides which interpretation to
believe[.]” United States v. Murphy,
35 F.3d 143, 148 (4th Cir.
1994) (citations omitted). A defendant challenging the
sufficiency of the evidence faces a heavy burden. See United
States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997).
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To establish a violation of 18 U.S.C. § 922(g)(1), the
Government was required to prove that: (i) Colbert was a
convicted felon at the time of the offense; (ii) he voluntarily
and intentionally possessed a firearm; and (iii) the firearm
traveled in interstate commerce. United States v. Gallimore,
247 F.3d 134, 136 (4th Cir. 2001). Here, the parties stipulated
that Colbert was a convicted felon and that the firearm had the
requisite interstate commerce nexus. The only disputed issue,
therefore, was whether the evidence established that Colbert
“possessed” a firearm on December 7, 2007. We hold that the
Government produced sufficient evidence to establish that
Colbert possessed the weapon underlying his conviction and,
hence, find the evidence sufficient to support the jury’s
verdict.
Although not challenged by Colbert, we have also
reviewed his sentence in accordance with our obligations under
Anders and affirm his sentence. Colbert’s presentence
investigation report properly placed him in a category IV
criminal history and attributed him with a total offense level
of twenty-eight, yielding a Guidelines range of 140 to 175
months which, given the statutory maximum of ten years in
prison, became 120 months. See 18 U.S.C. § 924(a)(2) (2006).
We also conclude that no reversible error occurred
during Colbert’s sentencing hearing. The district court
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appropriately inquired at sentencing whether there were
objections to Colbert’s presentence investigation report, to
which counsel responded there were not, asked whether defense
counsel had argument to present in mitigation, and afforded
Colbert an opportunity to allocute. We discern no reversible
error in the district court’s explanation for its 120-month
sentence. See United States v. Lynn, 592 F.3d 572, 576-80
(4th Cir. 2010). Thus, in the absence of argument challenging
Colbert’s within-Guidelines sentence, we affirm his 120-month
sentence. See United States v. Allen,
491 F.3d 178, 193 (4th
Cir. 2007) (“A sentence within the proper Sentencing Guidelines
range is presumptively reasonable.”).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Colbert, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Colbert 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 Colbert. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
5
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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