                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4294



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


NELSON W. BROADIE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-03-259)


Submitted:   November 18, 2004         Decided:     November 24, 2004


Before LUTTIG and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James F. Sumpter, JAMES F. SUMPTER, P.C., Richmond, Virginia, for
Appellant.   Michael S. Dry, Assistant United States Attorney,
Matthew Childs Ackley, OFFICE OF THE U.S. ATTORNEY, Richmond,
Virginia; Paul J. McNulty, United States Attorney, Michael J.
Elston, OFFICE OF THE U.S. ATTORNEY, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Nelson W. Broadie appeals from his jury conviction and

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

violation of 18 U.S.C. § 922(g)(1) (2000). Upon the jury’s finding

of guilt, the district court sentenced Broadie to seventy-eight

months’ imprisonment, two years of supervised release, and ordered

payment of a $100 special assessment.              On appeal, Broadie claims

insufficiency of the evidence and claims the district court erred

in refusing to grant his motion for a downward departure based on

over-representation of his criminal history.

             In evaluating a sufficiency of the evidence challenge,

the   jury   verdict    must    be   upheld   if   there   exists    substantial

evidence, including circumstantial and direct evidence, to support

the verdict, viewing the evidence most favorable to the government.

Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In resolving issues

of substantial evidence, we do not weigh evidence or review witness

credibility, United States v. Saunders, 886 F.2d 56, 60 (4th Cir.

1989), rather, the credibility of witnesses is within the sole

province of the jury.          United States v. Lamarr, 75 F.3d 964, 973

(4th Cir. 1996).       We may reverse a jury verdict only when there is

a   complete   absence    of    probative     facts   to   support   the   jury’s

conclusions.    Sherrill White Constr., Inc. v. South Carolina Nat'l

Bank, 713 F.2d 1047, 1050 (4th Cir. 1983).


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           Here, there was ample evidence to support the jury’s

verdict, including Broadie’s own trial testimony in which he

admitted the shotgun was in his apartment and further admitted that

he moved it.     While he further claimed he did not put it there and

did not possess it, asserting that it was left there by a prior

tenant, the jury apparently found that portion of his testimony not

to be credible.        Broadie further testified that he asked his

landlord to remove the shotgun from Broadie’s apartment, but the

landlord’s   testimony     contradicted    this   testimony.     There   was

testimony by police that when they responded to the call that a gun

had been discharged, Broadie initially denied that he had any

firearms in his apartment.       In addition, the government presented

evidence that the police found six .25-caliber unspent rounds on

the floor in Broadie’s bedroom, which rounds were the same brand

and caliber as the freshly-fired round discovered on the sidewalk

leading to Broadie’s apartment.         Additional evidence established

that   Broadie   was   a   convicted   felon.     We   find   this   evidence

sufficient to support the jury’s verdict.

           Broadie further asserts that the district court erred in

refusing to grant his motion for downward departure.             A district

court’s refusal to grant a downward departure is not reviewable

unless the court based its decision on the mistaken belief that it

lacked authority to do so.        United States v. Matthews, 209 F.3d

338, 352-53 (4th Cir. 2000).       In this case, because the district


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court explicitly recognized its authority to depart, yet refused to

do so, we decline to review Broadie’s claim on appeal.

           Accordingly, we affirm Broadie’s conviction and sentence.

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




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