                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4675



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROY TONY SHAW,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:06-cr-00423-WLO)


Submitted:   February 29, 2008             Decided:   July 23, 2008


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Vincent Frank Rabil, CRUMPLER, FREEDMAN, PARKER & WHITT, Winston-
Salem, North Carolina, for Appellant.  Anna Mills Wagoner, United
States Attorney, Michael F. Joseph, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              After a jury trial, Roy Tony Shaw was convicted for

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2000), and sentenced to 250 months in prison.

Shaw appeals, contending the court erred in sustaining the jury’s

verdict because the evidence was insufficient to convict him, and

the court abused its discretion by failing to downwardly depart

from the advisory sentencing guidelines range, resulting in an

unreasonable sentence.      Finding no error, we affirm.

              Shaw suggests that the evidence was insufficient to

support his felon in possession of a firearm conviction, thus the

district court erred in denying his Fed. R. Crim. P. 29 motion.           A

jury’s verdict must be sustained if there is substantial evidence,

taking the view most favorable to the Government, to support it.

Glasser v. United States, 315 U.S. 60, 80 (1942).           This Court has

“defined ‘substantial evidence’ as ‘evidence that a reasonable

finder of fact could accept as adequate and sufficient to support

a conclusion of a defendant’s guilt beyond a reasonable doubt.’”

United States v. Smith, 451 F.3d 209, 216 (4th Cir.) (quoting

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc)), cert. denied, 127 S. Ct. 197 (2006).              This Court “must

consider circumstantial as well as direct evidence, and allow the

government the benefit of all reasonable inferences from the facts

proven   to    those   sought   to   be   established.”     United   States


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

the sufficiency of the evidence, this Court does not review the

credibility of the witnesses and assumes that the jury resolved all

contradictions in the testimony in favor of the Government. United

States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).               This court

“can reverse a conviction on insufficiency grounds only when the

prosecution’s failure is clear.”         United States v. Moye, 454 F.3d

390,   394   (4th    Cir.)   (internal   quotation    marks     and   citation

omitted), cert. denied, 127 S. Ct. 452 (2006).

             To prove that Shaw was a felon in possession of a firearm

under 18 U.S.C. § 922(g)(1)(2000), the Government had to prove

that: (1) Shaw previously had been convicted of a crime punishable

by a term of imprisonment exceeding one year; (2) Shaw knowingly

possessed, transported, or received the firearm; and (3) the

possession was in or affecting commerce, because the firearm had

traveled in interstate or foreign commerce.          See United States v.

Langley, 62 F.3d 602, 606 (4th Cir. 1995)(en banc).           At trial, Shaw

stipulated    that   he   had   previously   been   convicted    of   a   crime

punishable by imprisonment for a term exceeding a year, thus he was

a convicted felon.        The parties also stipulated that the firearm

had traveled in interstate commerce. Accordingly, the only element

before the jury was whether Shaw knowingly possessed the firearm.

             Two officers testified that they saw Shaw pull a long

shiny metal object out of the waistband of his pants and throw it


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on a nearby roof as he was running away.             One officer heard the

object hit the roof.        A firearm was recovered from the roof and

there was no evidence that it had been there for a great length of

time.    No other unusual objects were on the roof.              Based on this

record, there was sufficient evidence of Shaw’s possession of the

firearm, so the district court properly sustained the jury’s guilty

verdict.

              Shaw next argues that the district court erred by denying

his request for a departure based on diminished capacity under USSG

§ 5K2.13, thus resulting in an unreasonable sentence under 18

U.S.C. § 3553(a) (2000).          We lack authority to review a district

court’s denial of a downward departure unless the court failed to

understand its authority to do so.           See United States v. Brewer,

520    F.3d   367   (4th   Cir.   2008).     Because    the    district     court

understood its authority to depart, but declined to do so on the

facts of this case, we are unable to review its denial of a

downward departure.

              Accordingly, we affirm Shaw’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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