UNITED STATES of America, Plaintiff-Appellee, v. Brian Keith MILLER, Defendant-Appellant, 38 F. App'x 161

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 possessed a firearm.

In reviewing the sufficiency of the evidence challenge 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, 62 S.Ct. 457, 86 L.Ed. 680 (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 possessed a gun at a gas station and inside Kirk’s home. In addition, an officer seized a loaded gun from under a rag 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 credibility).

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 testified that it was indeed stolen. Again, Miller’s claim essentially challenges 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 erroneous). Thus, we affirm Miller’s conviction and sentence.

We dispense with oral argument, because the facts and legal contentions are adequately presented in the material before the court and argument would not aid the decisional process. AFFIRMED.