                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4329



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BILLY DON CRANE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00040-IMK)


Submitted:   November 30, 2007            Decided:   January 4, 2008


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Scott A. Shough, Fairmont, West Virginia, for Appellant. Sharon L.
Potter, United States Attorney, Shawn Angus Morgan, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A jury convicted Billy Don Crane of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(2000).    The district court sentenced Crane to forty-one months’

imprisonment.       Crane timely appealed and contends the district

court erroneously calculated his criminal history category by

including an unserved state sentence and abused its discretion by

denying his Fed. R. Crim. P. 33 motion for a new trial.                      For the

following reasons, we affirm.

            We will affirm the sentence imposed by the district court

as long as it is within the statutorily prescribed range and

reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).

In sentencing a defendant, the district court must:                    (1) properly

calculate the guidelines range; (2) determine whether a sentence

within that range serves the factors under 18 U.S.C.A. § 3553(a)

(West   2000   &    Supp.      2006);   (3)    implement    mandatory       statutory

limitations;       and   (4)    explain   its     reasons       for   selecting    the

sentence, especially a sentence outside the advisory range. United

States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126

S.   Ct.   2309     (2006).       Crane       contends    the    district    court’s

calculation of his sentencing guidelines range was improper.

            The    presentence      report      (“PSR”)    recommended       a   total

offense level of sixteen and a career history category of III,

resulting in a range of twenty-seven to thirty-three months’


                                        - 2 -
imprisonment.       The PSR’s criminal history calculation did not

include a state sentence of five to eighteen years’ imprisonment

for a 1989 aggravated robbery conviction (“No. 89-F-19”); owing to

an administrative error, Crane never served this sentence. Had No.

89-F-19   been    reflected      in   the   PSR’s     recommendation,   Crane’s

criminal history category would have been IV and his sentencing

guidelines range would have been thirty-three to forty-one months’

imprisonment.

            Pursuant to U. S. Sentencing Guidelines Manual (“USSG”)

§ 4A1.3(a)(1) (2006), which instructs courts to depart upward based

on   inadequacy     of     criminal   history    if    “reliable   information

indicates    that        the   defendant’s      criminal    history     category

substantially under-represents the seriousness of the defendant’s

criminal history or the likelihood that the defendant will commit

other crimes,” the district court appropriately departed upward to

a criminal history category of IV in light of Crane’s unserved

prior sentence.          See also USSG § 4A1.2(a)(1) (defining “prior

sentence” as “any sentence previously imposed upon adjudication of

guilty plea, trial, or plea of nolo contendere, for conduct not

part of the instant offense”); United States v. Lawrence, 349 F.3d

724, 730 (4th Cir. 2003) (“Section 4A1.3 was drafted in classic

catch-all terms for the unusual but serious situation where the

criminal history category does not adequately reflect past criminal




                                      - 3 -
conduct or predict future criminal behavior.”).               We therefore

conclude Crane’s sentence was properly calculated.

           Crane also contends the district court’s denial of his

Rule 33 motion was improper.      We review the denial of this motion

for abuse of discretion.       See United States v. Russell, 221 F.3d

615, 619 (4th Cir. 2000).      A new trial may be appropriate when the

jury’s verdict is inapposite to the weight of the evidence and it

would be unjust to enter judgment on that basis. See Tibbs v.

Florida, 457 U.S. 31, 38 n.11, 44 n.20 (1982).           Crane’s contention

amounts to an attack on witness credibility, however, and we will

not upset on appeal the jury’s assessment of credibility.                 See

United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).                We

therefore find no abuse of discretion in the district court’s

denial of Crane’s Rule 33 motion.

           Accordingly, we affirm Crane’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




                                  - 4 -
