UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4251

TIMOTHY THOMAS MITCHEM,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                     No. 97-4370

TIMOTHY THOMAS MITCHEM,
Defendant-Appellee.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-96-28-WMN)

Argued: January 26, 1998

Decided: February 19, 1998

Before RUSSELL, WIDENER, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael Patrick May, Baltimore, Maryland, for Appel-
lant. James G. Warwick, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Andrea L. Smith, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Timothy Thomas Mitchem appeals his conviction for engaging in
the business of dealing in firearms without a license, see 18 U.S.C.A.
§ 922(a)(1)(A) (West Supp. 1997), arguing that the district court
improperly instructed the jury and that the evidence is insufficient to
support his conviction. Finding no error, we affirm.

I.

While the evidence presented at trial was voluminous, the key facts
may be summarized briefly. An investigation by the Bureau of Alco-
hol, Tobacco and Firearms (BATF) revealed that between December
7, 1992 and June 29, 1995 Mitchem purchased approximately 225
firearms from federally licensed firearms dealers and resold at least
175 of the weapons. Additionally, Mitchem made a substantial num-
ber of private, unrecorded purchases and sales of firearms. Further, on
at least two occasions Mitchem obtained particular firearms in
response to requests from interested purchasers. Although an agent of
the BATF informed Mitchem in December 1992 that it might be in
his best interest to obtain a federal firearms license, Mitchem did not
do so.

II.

Mitchem raises two challenges to his conviction. First, he main-
tains that the district court erroneously instructed the jury regarding
the elements of the offense of engaging in the business of dealing in
firearms without a license. More specifically, Mitchem claims that the
instruction given by the district court did not adequately inform the

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jury that in order to conclude that Mitchem had"engaged in the busi-
ness" of dealing in firearms, it had to find that he had purchased and
sold firearms "with the principal objective of livelihood and profit."
18 U.S.C.A. § 921(a)(21)(C) (West Supp. 1997) (defining the term
"engaged in the business"). After considering the jury charge as a
whole, we determine that the instructions given by the district court,
which included a verbatim recitation of the pertinent statutory lan-
guage, accurately and fairly stated the controlling law. See United
States v. Rahman, 83 F.3d 89, 92 (4th Cir.), cert. denied, 117 S. Ct.
494 (1996).

Mitchem also contends that the evidence is insufficient to support
his conviction. Having carefully reviewed the record, we conclude
that "there is substantial evidence, taking the view most favorable to
the Government, to support" Mitchem's conviction. Glasser v. United
States, 315 U.S. 60, 80 (1942).

III.

We conclude that the instructions given by the district court ade-
quately informed the jury of the elements of the offense and that Mit-
chem's conviction is supported by the evidence presented at trial.
Accordingly, we affirm.*

AFFIRMED
_________________________________________________________________
*The Government cross appeals the sentence imposed by the district
court, arguing that the court erred in departing downward from the appli-
cable guideline range. Having reviewed the record and considered the
arguments of the parties, we conclude that the district court did not abuse
its discretion in departing. See Koon v. United States, 116 S. Ct. 2035,
2044-48 (1996); United States v. Barber, 119 F.3d 276, 279-83 (4th Cir.)
(en banc), cert. denied, 118 S. Ct. 457 (1997).

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