                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4120


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

RICHARD TYRONE MCMILLAN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:08-cr-00031-jct-3)


Submitted:    September 29, 2009            Decided:   October 13, 2009


Before WILKINSON and      GREGORY,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Krysia Carmel Nelson, NELSON & TUCKER, PLC, Charlottesville,
Virginia, for Appellant. Julia C. Dudley, United States
Attorney, Jean B. Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A jury convicted Richard Tyrone McMillan of possession

of a stolen firearm and aiding and abetting, in violation of 18

U.S.C. §§ 2, 922(j) (2006), and possession of a firearm after

having previously been convicted of a crime punishable by more

than one year, in violation of 18 U.S.C. § 922(g)(1) (2006).

McMillan     was     sentenced         to   ten     years     of   imprisonment     for

possession of a stolen firearm and fifteen years of imprisonment

for     being   a    felon       in    possession        of   a    firearm,    to   run

concurrently, and now appeals.               Finding no error, we affirm.

            McMillan       first       challenges       the    sufficiency     of   the

evidence.       This court reviews a district court’s decision to

deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal de

novo.      United States v. Smith, 451 F.3d 209, 216-17 (4th Cir.

2006).     A defendant challenging the sufficiency of the evidence

faces a heavy burden.            United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997).             The verdict of a jury must be sustained

“if, viewing the evidence in the light most favorable to the

prosecution,        the      verdict        is      supported      by     ‘substantial

evidence.’”          Smith,      451    F.3d      at    216   (citations      omitted).

Substantial evidence is “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.”

Id.      (internal        quotation         marks       and    citation       omitted).

                                             2
Furthermore, “[t]he jury, not the reviewing court, weighs the

credibility of the evidence and resolves any conflicts in the

evidence        presented.”             Beidler,         110     F.3d       at     1067      (internal

quotation          marks        and     citation          omitted).                “Reversal        for

insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.”                          Id. (internal quotation marks

and citation omitted).

              McMillan           argues        that       the        Government           failed     to

demonstrate that the firearm charged in the indictment was a

firearm within the meaning of the statute because the Government

did not prove that the firearm was not an antique firearm.                                           In

order to prove McMillan possessed a stolen firearm in violation

of 18 U.S.C. § 922(j), the Government had to demonstrate that

(1) McMillan possessed the stolen firearm; (2) the firearm had

moved    in     interstate        commerce;             and    (3)    McMillan         knew    or   had

reason     to      know    that        the     firearm         was     stolen.          See     United

States v. Moye, 454 F.3d 390, 395 (4th Cir. 2006).                                     To establish

a     violation      of     18        U.S.C.    § 922(g)(1),               the    Government        was

required      to    prove       that:     (1)       McMillan         was   a     convicted     felon;

(2) he    knowingly         possessed           a    firearm;         and        (3)   the    firearm

traveled in interstate commerce.                              United States v. Gallimore,

247    F.3d     134,      136    (4th     Cir.       2001).          The    term       “firearm”     is

defined under the statute, in part, as “any weapon (including a

starter gun) which will or is designed to or may readily be

                                                    3
converted to expel a projectile by the action of an explosive

. . . [other than] an antique firearm.”                   18 U.S.C. § 921(a)(3)

(2006).     In addition, the statute defines an “antique firearm”

as any firearm manufactured in or before 1898 and any replica

that is not designed to use modern ammunition.                     See 18 U.S.C.

§ 921(a)(16) (2006).

            Moreover,     the     antique       firearms     exception         is    an

affirmative defense that must be raised by the defendant and

supported by evidence before the Government must disprove its

application.        See, e.g., United States v. Lawrence, 349 F.3d

109, 122-23 (3d Cir. 2003).              As McMillan failed to raise the

antique firearms exception in the district court or provide any

evidence of its application, the Government was not required to

demonstrate that the firearm was not an antique firearm.

            McMillan    also    argues       that   the   Government     failed      to

demonstrate that he knew the firearm was a firearm within the

meaning of the statute.         However, the Government was not obliged

to prove that McMillan knew that the firearm met the statutory

definition for a firearm.          See United States v. Frazier-El, 204

F.3d 553, 561 (4th Cir. 2000) (Government need not prove that

defendant    knew    possession    of    particular       type   of    firearm      was

prohibited).        In addition, the Government provided sufficient

evidence    to   demonstrate    that     McMillan     knew   the      weapon   was   a

firearm, as that term is commonly used.               See id.

                                         4
           McMillan       next      argues         that    the       Government        failed    to

demonstrate      that    he     knew    the     firearm          was      stolen.        We    have

thoroughly      reviewed      the      record       and     conclude        that       there    was

sufficient evidence from which the jury could find that McMillan

knew, or had reason to know, that the firearm was stolen.

           Finally, McMillan argues that the district court erred

in instructing the jury by omitting essential elements of the

crimes   charged.          As    McMillan          did     not       object       to   the     jury

instructions in the district court, we review this issue for

plain error.      See Neder v. United States, 527 U.S. 1, 8-9 (1999)

(noting that, in cases where defendant failed to object to jury

instruction, issue is reviewed for plain error).                              To prevail on

a claim of unpreserved error, McMillan must demonstrate that

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights.                      United States v. Olano, 507

U.S. 725, 732 (1993).             Furthermore, even if McMillan satisfies

this standard, this court will exercise its discretion to notice

the error only “if the error seriously affect[s] the fairness,

integrity, or public reputation of the judicial proceedings.”

Id. (internal quotation marks and citation omitted).

           McMillan       argues        that       the     district        court       failed    to

instruct   the    jury     on    the     definition             of   an    antique       firearm.

However,   as    noted     above,       McMillan          did    not      raise    the    antique

firearm exception as an affirmative defense.                                Accordingly, the

                                               5
Government was not required to prove that the firearm McMillan

possessed was not an antique firearm.

             McMillan also argues that the district court failed to

instruct the jury that the Government had to prove that he knew

the weapon was a firearm within the meaning of the statute.

However,     in    order   to    convict       a    defendant     of        a    violation    of

§ 922, the Government does not need to prove that the defendant

knew    that      possession     of      a   particular       type      of       firearm     was

prohibited.         See Frazier-El, 204 F.3d at 561; see also United

States v. Jones, 471 F.3d 535, 540 (4th Cir. 2006) (to establish

knowing        violation       of        § 922(g),         Government           “must      prove

defendant’s knowledge with respect to possession of the firearm

but    not   with    respect        to    other     elements      of    the       offense.”).

Therefore, we conclude that the district court did not err in

instructing the jury on the elements of the offenses.

               Accordingly, we affirm the judgment of the district

court.       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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