                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2580
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Wayne Michael Fisher,                   *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: November 28, 2008
                                Filed: December 2, 2008
                                 ___________

Before WOLLMAN, SMITH, GRUENDER, Circuit Judges.
                         ___________

PER CURIAM.

       A jury found Wayne Michael Fisher guilty of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the district court1
sentenced him to 120 months in prison and 3 years of supervised release. On appeal,
Fisher’s counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967),
challenging the sufficiency of the evidence and the denial of Fisher’s request for a
lower sentence. For the reasons that follow, we affirm.



      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
       Fisher’s conviction is supported by the testimony of police officers that a gun
was found protruding from beneath the driver’s seat of the car Fisher was driving
when he was stopped for a traffic violation, the testimony of a passenger that the gun
belonged to Fisher, and the parties’ stipulations about Fisher’s status as a convicted
felon and the gun’s travel in interstate commerce. See United States v. Montano, 506
F.3d 1128, 1133 (8th Cir. 2007) (this court does not review questions involving
credibility of witnesses; jury is free to believe testimony of any witness in its entirety);
United States v. Walker, 393 F.3d 842, 846-47 (8th Cir. 2005) (to convict defendant
under § 922(g)(1), government had to prove he had previously been convicted of
crime punishable by prison term exceeding one year, and defendant knowingly
possessed firearm which had been in or affected interstate commerce); cf. United
States v. Tindall, 455 F.3d 885, 887 (8th Cir. 2006) (evidence sufficient where gun
was found under passenger seat and defendant was driver and sole occupant of
vehicle).

      As for Fisher’s sentence, because nothing in the record indicates that the district
court was unaware of its authority to depart, or that the court’s refusal to do so was
based upon an unconstitutional motive, the denial of Fisher’s motion for a downward
departure based on his overstated criminal history is unreviewable. See United States
v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005); United States v. Frokjer, 415 F.3d
865, 874-75 (8th Cir. 2005). We also conclude that Fisher’s sentence is not
unreasonable. See United States v. Hernandez, 518 F.3d 613, 616-17 (8th Cir. 2008).

      We have independently reviewed the record under Penson v. Ohio, 488 U.S. 75,
80 (1988), and have found no nonfrivolous issues. Accordingly, we grant counsel’s
motion to withdraw, and we affirm.
                      ______________________________




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