                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4941


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

MARIO NATHANIEL BAKER,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:08-cr-00088-REP-1)


Submitted:    July 15, 2009                 Decided:   August 7, 2009


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


Affirmed by unpublished per curiam opinion.


W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,
Virginia, for Appellant.     Peter S. Duffey, Assistant United
States Attorney, Michael Jagels, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Mario Nathaniel Baker appeals his jury conviction and

185-month sentence for two counts of possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006);

one count of possession with intent to distribute heroin, in

violation of 21 U.S.C. § 841 (2006); and one count of possession

of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (2006).                     Baker asserts that the

district court erred when it: (i) denied his motion to sever a

2007 firearm possession count from his trial on the remaining

counts; (ii) denied his Fed. R. Crim. P. 29 motion for judgment

of   acquittal      on     all      counts;       and    (iii)     sentenced       him    to

185 months     in    prison        because        the    district     court     allegedly

calculated    his     Guidelines        range      incorrectly       and    because      his

within-Guidelines          sentence     allegedly         fails     to    serve    the    18

U.S.C. § 3553(a) (2006) factors.                  Finding no error, we affirm.

             The joinder of multiple offenses is proper under Fed.

R. Crim. P. 8(a) if the offenses are: (1) of the same or similar

character; (2) based on the same act or transaction; or (3) part

of   a   common     scheme    or     plan.         See    United    States    v.    Foutz,

540 F.2d    733,     736     (4th    Cir.     1976).        Even     if    offenses      are

properly     joined,       however,     severance          is    appropriate       if    the

defendant     establishes        that    he       would     be     prejudiced      by    the

joinder.     See Fed. R. Crim. P. 14(a).                        A defendant moving to

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sever       multiple      counts       in    an       indictment         has     the    burden     of

demonstrating a “strong showing of prejudice,” however, and “it

is not enough to simply show that joinder makes for a more

difficult defense.                 The fact that a separate trial might offer a

better      chance       of    acquittal         is       not    a     sufficient       ground    for

severance.”         United States v. Goldman, 750 F.2d 1221, 1225 (4th

Cir. 1984) (internal citations omitted).                                  A district court’s

decision to deny a motion to sever should only be overturned

upon    a    “showing         of    clear    prejudice           or    abuse     of    discretion.”

United      States       v.    Acker,       52    F.3d          509,    514    (4th     Cir.   1995)

(citation omitted).

               Baker      has       failed       to       meet   the     demanding       burden    of

demonstrating a “strong showing” that he was prejudiced by the

joinder       of    his       2007     firearm            possession          count.      This     is

especially true since the district court clearly instructed the

jury to keep the evidence pertaining to each offense separate

when considering Baker’s guilt.                           See United States v. Cardwell,

433 F.3d 378, 388 (4th Cir. 2005) (finding no prejudice based on

joinder of separate charges where the district court instructed

the jury that there were two distinct offenses and the evidence

supporting         one    offense        should            be    considered       separate       from

evidence supporting the other offense); United States v. Silva,

745 F.2d 840, 844 (4th Cir. 1984) (recognizing that a limiting

instruction will avoid the prejudicial effect that the denial of

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a motion for severance may have).                We conclude that the district

court did not abuse its discretion in denying Baker’s motion to

sever.

            We also find that the district court did not err in

denying Baker’s Rule 29 motion for judgment of acquittal on all

counts.     This court reviews the denial of a Rule 29 motion de

novo.     See United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

2005).       When    a    Rule     29   motion     was    based       on    a   claim     of

insufficient evidence, the jury’s verdict must be sustained “if

there is substantial evidence, taking the view most favorable to

the    Government,       to   support     it.”     United       States     v.   Abu     Ali,

528 F.3d 210, 244 (4th Cir. 2008) (internal quotation marks and

citations omitted), cert. denied, 129 S. Ct. 1312 (2009).                               This

court “ha[s] 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.”         Alerre,      430     F.3d    at    693      (internal

quotation marks and citations omitted).

            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 v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982) (citations omitted).                   This court may not weigh

the evidence or review the credibility of the witnesses.                                 See

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United States v. Allen, 491 F.3d 178, 185 (4th Cir. 2007).                        If

the   evidence       “supports      different,   reasonable     interpretations,

the   jury    decides       which    interpretation     to    believe.”      United

States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (citations

omitted).        A    defendant      challenging     the     sufficiency   of    the

evidence faces a heavy burden.                See United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997).                       We have reviewed the

record in this case and conclude that the Government produced

sufficient evidence for a reasonable jury to conclude that Baker

committed the crimes with which he was charged.                   Accordingly, we

find that the district court did not err in denying Baker’s Rule

29 motion for judgment of acquittal.

              Last, Baker argues that the district court incorrectly

calculated his Guidelines range when it included a 1988 felony

conviction     in     his   criminal     history     calculation    because     that

conviction occurred more than fifteen years before the offenses

in the indictment and a prison term exceeding one year and one

month   was    not    imposed.        Baker   also    summarily    asserts      that,

although his sentence was a within-Guidelines sentence, it was

greater than necessary to achieve the § 3553(a) objectives.                       We

reject both assertions.

              After United States v. Booker, 543 U.S. 220 (2005),

this court reviews a sentence for reasonableness, and “whether

inside, just outside, or significantly outside the Guidelines

                                          5
range,”    this    court   applies   a     “deferential        abuse-of-discretion

standard.”        Gall v. United States, 552 U.S. 38, 128 S. Ct. 586,

591 (2007).         This court first must “ensure that the district

court committed no significant procedural error.”                   128 S. Ct. at

597.    Only if the sentence is procedurally reasonable can this

court evaluate the substantive reasonableness of the sentence,

again using the abuse of discretion standard of review.                           Id.;

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

            In     determining   whether       the   district     court    committed

any    significant      procedural   error,       this    court    looks    to     any

failure in the calculation (or the improper calculation) of the

Guidelines range, the treatment of the Guidelines as mandatory,

the failure to consider the § 3553(a) factors, the selection of

a sentence using clearly erroneous facts, and any failure to

adequately explain the chosen sentence, including any deviation

from the advisory Guidelines range.                  Gall, 128 S. Ct. at 597.

We may apply a presumption of reasonableness on appeal to a

within-Guidelines sentence.              Rita v. United States, 551 U.S.

338, 127 S. Ct. 2456, 2462 (2007); see also Nelson v. United

States,    129     S.   Ct.   890,   892       (2009)    (emphasizing      that    the

presumption        of   reasonableness         accorded    a    within-Guidelines

sentence     is    an   appellate    court       presumption      rather    than     a

presumption enjoyed by a sentencing court).                    Even if this court

would have imposed a different sentence, this fact alone will

                                           6
not justify vacatur of the sentence.                  United States v. Evans,

526 F.3d 155, 162 (4th Cir. 2008).

            Although        the   conviction    about   which   Baker     complains

occurred more than fifteen years prior to his current offenses,

because he was sentenced in 1997 for probation revocation, the

conviction is deemed to have occurred within fifteen years of

his 2007 and 2008 offenses.              U.S. Sentencing Guidelines Manual

(“USSG”) § 4A1.2(k) (2007).             Moreover, although Baker’s original

prison term for the 1988 conviction did not exceed one year and

one month, Baker received a two-year sentence upon revocation of

his probation in 1997, thereby bringing the prison term within

the purview of USSG § 4A1.2(e)(1) (2007).                Accordingly, we find

that    Baker’s      1988    conviction       was   properly    counted    by   the

district court in determining Baker’s criminal history category.

            We also find that the district court’s imposition of a

185-month sentence is reasonable and should not be disturbed.

At     sentencing,     the    district    court      considered    and    rejected

Baker’s    objections        to   the   presentence     investigation      report.

Moreover, Baker does not deny that his sentence is within the

Guidelines range calculated by the district court and within

statutory mandates, or that the district court considered the

§ 3553(a) factors.           Rather, Baker only summarily asserts that a

lesser sentence would have been more appropriate because his

criminal history consisted only of convictions for drug crimes,

                                          7
rather than for crimes of violence or crimes involving firearms.

Such     a    summary       assertion   is     insufficient       to     defeat   the

presumption of reasonableness that this court accords a district

court’s within-Guidelines sentence on appeal.                  Rita, 127 S. Ct.

at 2462.

               Based on the foregoing, we affirm the district court’s

judgment.          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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