                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4344



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


HARRY M. WILLIAMS, JR.,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:05-cr-00172-HEH)


Submitted: April 25, 2007                      Decided:   July 9, 2007


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Acting Federal Public Defender, Charles D.
Lewis, Assistant Federal Public Defender, Sapna Mirchandani,
Research and Writing Attorney, Richmond, Virginia, for Appellant.
Matthew Childs Ackley, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Harry M. Williams, Jr., appeals his conviction and 120-

month sentence imposed following a jury trial on a charge of

possession of a firearm by a person previously convicted of a

felony offense.      18 U.S.C. § 922(g)(1) (2000).                 Williams’ attorney

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there were no meritorious issues for appeal,

but   asserting     that    the   district       court   erred       by:       (1)   denying

Williams’    claim    that    the      government    exercised           its    peremptory

strikes to exclude black jurors from the venire, in violation of

Batson v. Kentucky, 476 U.S. 79 (1986); (2) denying Williams’

motions     for   judgment        of    acquittal;       and       (3)     granting      the

government’s motion for an upward departure from the sentencing

guideline range.      Williams was informed of his right to file a pro

se supplemental brief, but has not done so.                        Our review of the

record    discloses    no    reversible      error;      accordingly,           we    affirm

Williams’ conviction and sentence.

            Great     deference        is   given     to       a    district         court’s

determination of whether a peremptory challenge was based on a

discriminatory motive, and the court’s ruling is reviewed for clear

error.      Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995).

Generally, a Batson challenge consists of three steps: (1) the

defendant makes out a prima facie case of discrimination; (2) the

government offers a race-neutral explanation; and (3) the trial


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court decides whether the defendant has carried his burden and

proved purposeful discrimination.       Purkett v. Elem, 514 U.S. 765,

767-68 (1995).    “Once a prosecutor has offered a race-neutral

explanation for the peremptory challenges and the trial court has

ruled on the ultimate question of intentional discrimination, the

preliminary issue of whether the defendant had made a prima facie

showing becomes moot.”       Hernandez v. New York, 500 U.S. 352, 359

(1991) (plurality opinion).       “At this step of the inquiry, the

issue is the facial validity of the prosecutor’s explanation.

Unless a discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race neutral.”           Id.

at 360.

          The government explained that it struck the first two

jurors because they appeared uninterested and looked like they were

falling asleep. The government explained its third strike, stating

that the prospective juror appeared to be leering, smirking, and

not taking the proceedings seriously.          The district court found

these to be racially-neutral bases for striking the jurors.

          The fourth potential juror was stricken because the

government   expressed   a    dislike   for   working   with   jurors   who

previously served on Richmond juries, because “[a] lot of times

they have had bad experiences . . . .         If I see a Richmond juror,

I just usually want to strike them. . . . Richmond jurors tend to

have not great experiences, and I don’t like dealing with Richmond


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jurors.”     The district court found this to be a racially neutral

explanation and denied Williams’ objection.

           We review only for clear error the trial court’s finding

that the defendant failed to carry his burden to prove purposeful

discrimination. Jones, 57 F.3d at 421. Although Williams asserted

that the government’s stated reasons for excluding those jurors

were pretextual, based on our review of the record in this case,

the district court did not clearly err in finding otherwise.               See

Jones, 57 F.3d at 421. Accordingly, we affirm the district court’s

denial of Williams’ Batson challenge.

           Williams next contends that the district court erred in

denying his motions for judgment of acquittal.            This court reviews

the district court’s decision to deny a Federal Rule of Criminal

Procedure 29 motion de novo.      United States v. Smith, 451 F.3d 209,

216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006).                 Where, as

here, the motion was based on a claim of insufficient evidence,

“[t]he verdict of a jury 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);

Smith, 451 F.3d at 216.

           In order to convict Williams under § 922(g)(1), the

government    had   to   establish   that    (1)   he   previously   had   been

convicted of a felony; (2) he knowingly possessed the firearm; and

(3) the possession was in or affecting commerce, because the


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firearm had traveled in interstate or foreign commerce at some

time.    United States v. Moye, 454 F.3d 390, 395 (4th Cir.), cert.

denied, 127 S. Ct. 452 (2006).           Because Williams stipulated as to

the first and third elements, the only element in dispute is

whether Williams knowingly possessed the firearm.

            The government presented evidence that a security guard

saw Williams holding a gun and shooting into the air.              The security

guard directed the man to holster his weapon, which the guard

observed him do.         The man then got into a car with two other men

and drove off, only to circle the block and return.            The security

guard approached the vehicle and ordered the three men to exit the

vehicle, which they did. The guard recognized one of the occupants

as the man whom he had seen with the gun.           The firearm and holster

were recovered from inside the vehicle. The firearm had gun powder

residue on it, and it smelled like it had been fired.                Also, the

rounds loaded in the weapon alternated silver and brass. The shell

casings recovered from the area where the shooting occurred also

were    both    silver    and   brass.    The   security   guard    positively

identified Williams during the trial as the man he saw fire the

gun.

               Williams asserts that the government failed to present

the testimony of any civilian eyewitness, despite the fact that

there were a number of people around at the time of the incident.

He also makes much of the fact that the security guard and the


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Richmond police officer who responded to the scene both handled the

gun and the magazine, thus destroying fingerprint evidence, and

that after finding an unidentified latent print on the weapon, the

government     did    not   request   a   palm    print     from    Williams   for

comparison.     He contends that gunshot residue tests should have

been performed to prove whether Williams had, in fact, fired the

weapon.       Also,   Williams   asserts       that   the    DNA    evidence   was

inconclusive because someone could have touched the holster after

he did and his DNA could still be on the holster; or he could have

brushed against it without knowing and deposited his DNA on it yet

not have been the one to have fired the gun.                 Determinations of

credibility and the weight to be given to evidence is within the

province of the jury.        United States v. Wilson, 118 F.3d 228, 234

(4th Cir. 1997); United States v. Murphy, 35 F.3d 143, 148 (4th

Cir. 1994).

          Viewing this evidence in the light most favorable to the

government, see Glasser, 315 U.S. at 80, we conclude that there was

sufficient evidence to support a finding that Williams possessed

the firearm.     Coupled with his stipulations to his prior felony

conviction and the interstate commerce element of the offense,

there   was    sufficient     evidence    to     support    a   conviction     for

possession of the firearm by a convicted felon.                    Id.   Thus, the

district court did not err in denying Williams’ motion for judgment

of acquittal.


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            The final issue asserted by Williams is that the district

court erred in granting the government’s motion for an upward

departure at sentencing based on his criminal history.           When

reviewing a sentence outside the advisory guideline range—whether

as a product of a departure or a variance—this court considers both

whether the district court acted reasonably with respect to its

decision to impose such a sentence and with respect to the extent

of the divergence from the guideline range.        United States v.

Davenport, 445 F.3d 366, 370-71 (4th Cir. 2006) (citing United

States v. Moreland, 437 F.3d 424, 433-34 (4th Cir.), cert. denied,

126 S. Ct. 2054 (2006) and United States v. Hairston, 96 F.3d 102,

106 (4th Cir. 1996) (regarding departure sentence)).      This court

has held:

     [T]o sentence a defendant, district courts must (1)
     properly calculate the sentence range recommended by the
     Sentencing Guidelines; (2) determine whether a sentence
     within that range and within statutory limits serves the
     factors set forth in § 3553(a) and, if not, select a
     sentence that does serve those factors; (3) implement
     mandatory statutory limitations; and (4) articulate the
     reasons for selecting the particular sentence, especially
     explaining why a sentence outside of the Sentencing
     Guideline range better serves the relevant sentencing
     purposes set forth in § 3553(a).

United States v. Green, 436 F.3d 449, 455-56 (4th Cir.) (footnote

omitted), cert. denied, 126 S. Ct. 2309 (2006).       A sentence not

imposed within the properly calculated range must be based on the

factors listed under § 3553(a).    Id. at 456.




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           The probation officer computed Williams’ guideline range

as 84 to 108 months, based on an offense level of 22 and criminal

history category VI.         Addressing the government’s motion for an

upward   departure,    the    court    applied   the   five-step    procedure

outlined in United States v. Bonetti, 277 F.3d 441 (4th Cir. 2002).

In doing so, the court reviewed the facts and circumstances of

Williams’ case, including his extensive and continuous criminal

record, which began at age 12.          The court noted that Williams had

twenty misdemeanor offenses as an adult, five felony convictions,

two violations of probation, and sixteen offenses—mostly juvenile

offenses—for   which   no     criminal   history    points   were   assessed.

Noting that an under-represented criminal history and a substantial

likelihood   that   the     defendant    will    commit   other   crimes   are

encouraged bases for departure from the guidelines, the court found

that a two-level upward departure was appropriate.            The resulting

guideline range was 100 to 125 months.               After considering the

factors set forth in 18 U.S.C. § 3553(a) (West 2000 & Supp. 2006),

the court found this to be a reasonable sentencing range and

ultimately imposed a sentence of 120 months—the statutory maximum.

           Williams contends that the departure was unreasonable

because it was based on his juvenile record, because most of his

offenses were for non-violent offense, and because many of his

offenses were driving-related offenses.            He also asserted that he

had never previously received a sentence of longer than seventeen


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months.      He argued that an 84-month sentence “would impose a

sufficiently harsh punishment, serve as an effective deterrent to

any future crime, and protect the community as required under

§ 3553(a).”

           We find that the district court appropriately considered

these   facts     and   arguments   and    did    not   err   in   granting     the

government’s motion for an upward departure. We also find that the

length of the sentence was reasonable.                  As the district court

concluded,    a   120-month    sentence     was   reasonable       based   on   the

§ 3553(a) factors, Williams’ criminal record, his “inability to

adjust to rehabilitative programs,” his prior parole and probation

violations, and the nature of the offense.              See Moreland, 437 F.3d

at 432.   The court clearly considered the reasons for departure

under the Guidelines and the factors under § 3553(a), and the court

articulated specific reasons why a sentence greater than the

guidelines    range     was   warranted.      Because     the   district    court

articulated supportable reasons for sentencing above the properly-

calculated sentencing guidelines range and considered the factors

under § 3553(a), we conclude that the court acted reasonably in

departing upward by two levels.            See United States v. Hernandez-

Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). Accordingly, we

affirm Williams’ sentence.

           As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.                    We therefore


                                    - 9 -
affirm Williams’ conviction and sentence. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review.      If the

client requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in this

court for leave to withdraw from representation.   Counsel’s motion

must state that a copy thereof was served on the client.        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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