                               UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53




            United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                           Submitted December 13, 2005
                            Decided December 14, 2005

                                       Before

                   Hon. RICHARD A. POSNER, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge


No. 05-1824

UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Southern District of
                                              Indiana, Indianapolis Division
      v.
                                              No. 1:04CR00163-001
JACKIE L. WOODARD,
     Defendant-Appellant.                     David F. Hamilton,
                                              Judge.

                                     ORDER

       Jackie Woodard attempted to commit suicide by shooting himself in the
abdomen. He survived, but was subsequently arrested by police for possessing a
firearm after a felony conviction. See 18 U.S.C. § 922(g)(1). Woodard was convicted
after a jury trial and sentenced to the statutory maximum of ten years’
imprisonment and three years’ supervised release. Woodard has filed a notice of
appeal, but his appointed counsel moves to withdraw because he cannot discern a
nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967).
Woodard has not responded to our invitation to comment on the motion under
Circuit Rule 51(b); therefore we confine our review to the potential issues identified
No. 05-1824                                                                   Page 2

in counsel’s facially adequate brief. See United States v. Tabb, 125 F.3d 583, 584
(7th Cir. 1997) (per curiam).

       Counsel first considers whether Woodard could challenge the sufficiency of
the evidence underlying his conviction for being a felon in possession. Evidence
supporting a conviction is sufficient if, when viewed in the light most favorable to
the prosecution, any rational trier of fact could have found each element of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Kapp, 419 F.3d 666, 671–72 (7th Cir. 2005). To establish
prohibited possession under § 922(g)(1), the government must prove (1) that the
defendant knowingly possessed a firearm; (2) that the firearm traveled in or
affected interstate commerce; and (3) that the defendant had a prior felony
conviction. 18 U.S.C. § 922(g)(1); United States v. Allen, 383 F.3d 644, 646–47 (7th
Cir. 2004). At trial Woodard stipulated to the third element, and an agent of the
Bureau of Alcohol, Tobacco and Firearms and Explosives testified as to the
second—that the firearm in question was manufactured in Hartford, Connecticut
and had been recovered in Kokomo, Indiana. Therefore counsel focuses his review
primarily on the possession element.

       Counsel questions whether the lack of direct evidence—such as fingerprints
on the gun or a gunshot-residue test of Woodard’s hands—undermines the verdict,
but ultimately concludes that any challenge would be frivolous because the
circumstantial evidence is sufficient to conclude Woodard possessed the gun during
a suicide attempt. We agree. Woodard’s girlfriend, Lannette Eason—who was
present in the trailer at the time of the shooting—testified that she did not see
Woodard discharge the gun, but “assumed” Woodard shot himself. Further, when
Woodard rose from the chair he had been sitting in, he had a bullet hole in his
abdomen and the gun was on the floor in front of him. Ballistic evidence showed
that the gun found at the scene could not have accidentally discharged, as Woodard
claimed. Woodard’s cousin testified that Woodard had been depressed before the
shooting because of a relative’s recent death. Woodard’s cousin was also present in
the trailer when the gun discharged and testified that although he did not see
Woodard shoot himself, none of the other people present were responsible for the
shooting. And at trial the government introduced Woodard’s statement to a relative
that his “biggest mistake” was that he did not get rid of the gun after the shooting.
We agree with counsel that any challenge to the sufficiency of the evidence would be
frivolous.

      Counsel next considers whether the district court erred by allowing into
evidence Woodard’s tape-recorded telephone calls in which he threatened Eason and
attempted to convince her to retract her original statement to police that he shot
himself. The district court has broad discretion in weighing the probative value of
evidence against any potential prejudice, and we will reverse only upon a clear
No. 05-1824                                                                     Page 3

showing that the court abused its discretion. United States v. Thompson, 359 F.3d
470, 478 (7th Cir. 2004). Evidence of threats against a witness is admissible to
explain a witness’s courtroom demeanor when that demeanor indicates
intimidation. Id. at 476. The district court found the recordings highly probative
with respect to Eason’s credibility because “[t]here has been in this case specific
indications from the witness’s testimony and her demeanor relating to her
credibility and her efforts to modify her testimony to assist the defendant.” Eason
testified that Woodard was the “love of [her] life.” Similarly, when asked if she saw
a gun in Woodard’s hand, she requested to “plead the fifth.” We agree with counsel
that any challenge to the admission of these calls would be frivolous.

      Turning his attention to Woodard’s sentence, counsel considers generally
whether Woodard may raise a challenge under United States v. Booker, 543 U.S.
220 (2005). But as counsel correctly states, Woodard’s sentence is presumed
reasonable because it falls within the properly calculated advisory guideline range.
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

       Counsel also evaluates whether the district court incorrectly calculated
Woodard’s criminal history category by assigning him three criminal history points
for a revocation of probation in 1993. See U.S.S.G. § 4A1.1(a). The guidelines
require that, for purposes of determining criminal history, periods of imprisonment
served by a defendant upon revocation of probation be aggregated with any original
period of imprisonment. See U.S.S.G. § 4A1.2(k) cmt. n.11; United States v. Reed,
94 F.3d 341, 345–46 (7th Cir. 1996). In 1991, Woodard served approximately six
months in prison before being released on probation. Although this period of
incarceration alone would not trigger § 4A1.1(a), Woodard’s probation was
subsequently revoked and he served an additional year in prison. Because the
aggregated period of incarceration exceeds one year and one month and falls within
the applicable fifteen-year time period, see U.S.S.G. § 4A1.2(e)(1), we agree with
counsel that any challenge to the computation of Woodard’s criminal history would
be frivolous.

       Counsel also considers whether the district court correctly assessed a two-
level increase for obstruction of justice. See U.S.S.G. § 3C1.1. Obstruction of justice
includes attempting to influence a witness to make false statements. See United
States v. Sutton, 337 F.3d 792, 801 (7th Cir. 2003). The district court assessed the
two-point increase because evidence at trial demonstrated Woodard’s attempt to
manipulate and intimidate witnesses’ stories. The court specifically noted that the
tapes of telephone calls Woodard placed while incarcerated made “this as well
documented and clear a case of such efforts as I have ever seen.” We agree with
counsel that any challenge to the obstruction-of-justice adjustment would be
frivolous.
No. 05-1824                                                                  Page 4

       Finally, counsel considers a potential argument posed by Woodard—whether
a juror was improperly selected because of statements made by that juror
concerning African-Americans during jury selection. But as counsel acknowledges,
the transcript of the jury voir dire does not reflect that any statement concerning
race or ethnicity was made by any prospective juror during voir dire. Therefore, we
agree with counsel that such a challenge would be frivolous.

      Accordingly, we GRANT counsel’s motion to withdraw and DISMISS this
appeal.
