                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4757


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RONNIE L. ROBBINS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:10-cr-00006-JPJ-PMS-1)


Submitted:   September 11, 2012           Decided:      September 13, 2012


Before MOTZ and      SHEDD,   Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Robert W. Austin, Johnny L. Rosenbaum, SCYPHERS & AUSTIN, P.C.,
Abingdon, Virginia, for Appellant.     Timothy J. Heaphy, United
States Attorney, Zachary T. Lee, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Ronnie L. Robbins appeals his convictions following a

jury trial on two counts of possession of a falsely altered

military discharge certificate (Counts 1s and 2s), in violation

of 18 U.S.C. § 498 (2006); one count of falsely claiming receipt

of a military decoration or medal (Count 3s), in violation of 18

U.S.C.A. § 704(b) (West Supp. 2012); one count of making false

statements     to        the    Department         of     Veterans     Affairs   in     his

application for disability benefits (Count 5s), in violation of

18 U.S.C. § 1001(a)(2), (3) (2006); and one count of mail fraud

in   conjunction         with    his    application         for   disability     benefits

(Count 6s), in violation of 18 U.S.C.A. § 1341 (West 2000 &

Supp. 2012).        We affirm in part, vacate in part, and remand for

further proceedings consistent with this opinion.

             Robbins first challenges the district court’s denial

of his Federal Rule of Criminal Procedure 29 motion for judgment

of   acquittal      on    Counts       1s,   2s,    5s,    and    6s   for   insufficient

evidence.     We review de novo the district court’s denial of a

Rule 29 motion.            United States v. Perkins, 470 F.3d 150, 160

(4th Cir. 2006).               A jury verdict must be upheld “if there is

substantial evidence, viewed in the light most favorable to the

Government, to support it.”                   Id.       “[S]ubstantial evidence is

evidence    that     a     reasonable        finder       of   fact    could   accept    as

adequate and sufficient to support a conclusion of a defendant’s

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guilt beyond a reasonable doubt.”           Id. (internal quotation marks

omitted).       “We   consider       both     circumstantial         and     direct

evidence,” drawing all reasonable inferences from such evidence

in the government’s favor.           United States v. Harvey, 532 F.3d

326, 333 (4th Cir. 2008).            However, “[w]e may not weigh the

evidence or review the credibility of the witnesses [because]

[t]hose functions are reserved for the jury.”                 United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997) (internal citation

omitted).

            Section   498,   under    which    Counts    1s    and    2s     arose,

criminalizes the use, possession, or exhibition of a military

discharge    certificate     “knowing       the   same        to     be     forged,

counterfeited, or falsely altered.”            18 U.S.C. § 498.             Viewing

the evidence in the light most favorable to the Government, we

conclude that the evidence was sufficient for the jury to find

that Robbins knowingly used a forged or falsely altered military

discharge certificate as charged in Counts 1s and 2s. *                   Thus, the

district court did not err in denying Robbins’ Rule 29 motion on

those counts.




     *
       We decline Robbins’ invitation to apply the rule of lenity
to his case, as § 498 is not ambiguous.     See United States v.
Santos, 553 U.S. 507, 514 (2008) (“The rule of lenity requires
ambiguous criminal laws to be interpreted in favor of the
defendants subjected to them.”).



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              Section     1001(a),        under     which        Count      5s    arose,

criminalizes the making of “any materially false, fictitious, or

fraudulent     statement       or   representation”        and    the      use   of   “any

false    writing     or   document     knowing      the    same       to   contain    any

materially false, fictitious, or fraudulent statement or entry.”

18   U.S.C.    §    1001(a)(2),      (3).        “The    test    of    materiality     is

whether the false statement has a natural tendency to influence

agency   action      or   is    capable     of    influencing         agency     action.”

United States v. Garcia-Ochoa, 607 F.3d 371, 375 (4th Cir. 2010)

(internal quotation marks omitted).                     Viewed in the light most

favorable to the Government, we conclude that the evidence was

sufficient for the jury to find that Robbins made a materially

false statement to the Department of Veterans Affairs in order

to   obtain        disability       benefits      for     post-traumatic          stress

disorder.       See id. at 376 (“Materiality, as an element of a

criminal offense, is a question of fact (or at the very least, a

mixed question of law and fact) to be resolved by the fact

finder . . . .”).         Likewise, viewed in the light most favorable

to the Government, we conclude that the Government presented

sufficient evidence from which the jury could find that Robbins

committed mail fraud in conjunction with his attempt to obtain

disability benefits.           See 18 U.S.C.A. § 1341; United States v.

Godwin, 272 F.3d 659, 666 (4th Cir. 2001) (providing elements of

mail fraud); see also Neder v. United States, 527 U.S. 1, 25

                                            4
(1999) (stating that scheme to defraud must involve material

misrepresentation).

          Finally,    Robbins   contends      that     Count    3s   should   be

dismissed because the Stolen Valor Act, 18 U.S.C.A. § 704(b), is

unconstitutional.      In    light   of    the    Supreme      Court’s   recent

decision in United States v. Alvarez, 132 S. Ct. 2537, 2543-51

(2012), in which the Court concluded that the Stolen Valor Act

violates the First Amendment, Robbins’ point is well-taken.                   We

therefore vacate Robbins’ conviction on Count 3s.

          Accordingly, we affirm the district court’s judgment

on Counts 1s, 2s, 5s, and 6s, vacate the court’s judgment on

Count   3s,   and   remand   for     entry   of    a    corrected     judgment

consistent with this opinion.            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 IN PART;
                                                             VACATED IN PART;
                                                                 AND REMANDED




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