                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-6782


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

RONALD MAYBERRY,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.    Louise W. Flanagan,
Chief District Judge. (5:05-cr-00299-FL-1; 5:07-cv-00307-FL)


Submitted:    July 27, 2009                 Decided:   August 13, 2009


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant.     George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Ronald    Mayberry         was     indicted        on    one     count    of

possession of a firearm by a convicted felon, in violation of 18

U.S.C.    §§ 922(g)(1),         924   (2006).          Following        a     jury   trial,

Mayberry       was   convicted      and     sentenced        to   thirty-six         months’

imprisonment.         On appeal, Mayberry contends that the district

court erred in not sua sponte entering a judgment of acquittal

under Federal Rule of Criminal Procedure 29 (“Rule 29”) based on

insufficient evidence, that his trial counsel was ineffective

for failing to move for a Rule 29 judgment of acquittal, and

that    the     district      court’s     jury     instructions         were     deficient

because    they      failed    to   state       that   the   jury      must    unanimously

determine which firearm Mayberry possessed.                            For the reasons

below, we affirm the judgment of the district court.

                                            I.

               Mayberry first argues that the district court erred in

failing to enter, sua sponte, a judgment of acquittal under Rule

29     based    on    insufficient        evidence      that      Mayberry      knowingly

possessed a firearm.          Pursuant to Rule 29:

               After the government closes its evidence or
               after the close of all the evidence, the
               court on the defendant’s motion must enter a
               judgment of acquittal of any offense for
               which   the  evidence    is   insufficient to
               sustain a conviction.    The court may on its
               own   consider   whether    the   evidence is
               insufficient to sustain a conviction.


                                             2
Fed. R. Crim. P. 29(a).                  Mayberry’s counsel, though prompted by

the court, did not file a Rule 29 motion for acquittal.                               Because

Mayberry failed to move for acquittal pursuant to Rule 29, our

review       is    for     plain     error    under      Federal      Rule   of   Criminal

Procedure 52. *           Fed. R. Crim. P. 52(b); United States v. Wallace,

515 F.3d 327, 332 (4th Cir. 2008).                      To demonstrate plain error,

a defendant must show that: (1) there was an error; (2) the

error       was    clear    or    obvious;    and      (3)   the     error   affected      his

“substantial rights.”                United States v. Olano, 507 U.S. 725,

732–34 (1993).              We are not required to correct a plain error

unless       “a        miscarriage    of     justice      would      otherwise    result,”

meaning that the error “cause[d] the conviction or sentencing of

an actually innocent defendant.”                      Id. at 736 (internal quotation

marks and citations omitted).

                  “A     defendant    challenging         the      sufficiency        of   the

evidence          to    support    his     conviction        bears    a   heavy   burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(internal         quotation       marks    and       citation   omitted).         A    jury’s


        *
       Mayberry argues that our review should be de novo because
the district court denied a judgment of acquittal.      However,
Mayberry readily concedes there was no Rule 29 motion filed.
Instead, Mayberry appears to argue that, because the district
court   was  permitted   to  consider  sua   sponte  evidentiary
sufficiency, it effectively denied a motion by not doing so. We
decline to adopt this reasoning and find that plain error is the
proper standard of review.



                                                 3
verdict “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).                                 See

also United States v. Martin, 523 F.3d 281, 284 (4th Cir. 2008).

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.”

United   States     v.    Alerre,      430   F.3d      681,     693   (4th    Cir.       2005)

(internal quotation marks and citation omitted).                             We “may not

weigh the evidence or review the credibility of the witnesses

[because] [t]hose functions are reserved for the jury.”                              United

States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997) (internal

citation omitted).

            “[T]o prove a violation of § 922(g)(1), the government

must prove, beyond a reasonable doubt, that:                          (1) the defendant

previously had been convicted of a crime punishable by a term of

imprisonment      exceeding      one     year;     (2)    the    defendant        knowingly

possessed . . . the firearm; and (3) the possession was in or

affecting commerce . . . .”                United States v. Langley, 62 F.3d

602, 606 (4th Cir. 1995).                Mayberry does not deny that he was

previously      convicted       of   a     crime       punishable       by    a    term     of

imprisonment exceeding one year or that the firearm traveled in

interstate commerce.         Mayberry argues only that the evidence was

not    sufficient    to    prove     his     constrictive        possession         of    .380

                                             4
caliber Hi Point found in his stepson’s bedroom.                              What Mayberry

ignores,     however,     is    that    a     neighbor’s         testimony        established

that Mayberry possessed and fired a weapon in his front yard on

May 21, 2005.         Moreover, expert testimony established that the

spent   shell    casing      found     outside       Mayberry’s            home   on   May   21,

2005, came from the .380 caliber Hi Point later found in the

stepson’s     bedroom.         Viewing       the     evidence         in    the   light      most

favorable to the Government, we find that this testimony was

substantial enough for the jury to determine that Mayberry had

actual possession of a firearm.                Mayberry’s claim thus fails.

                                             II.

             Mayberry       next      argues       that     he    received        ineffective

assistance of counsel because counsel failed to file a Rule 29

motion for acquittal and that, had such motion been filed, it

would have been granted.                 A defendant may raise a claim of

ineffective assistance of counsel “on direct appeal if and only

if it conclusively appears from the record that his counsel did

not provide effective assistance.”                     United States v. Martinez,

136   F.3d    972,    979      (4th    Cir.        1998).        To    prove      ineffective

assistance      the   defendant         must        show    two       things:      (1)    “that

counsel’s     representation          fell     below       an    objective        standard    of

reasonableness” and (2) “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding      would       have       been        different.”               Strickland       v.

                                               5
Washington, 466 U.S. 668, 688, 694 (1984).                      There is “a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.”                 Id. at 689.

              In United States v. Daniel, 3 F.3d 775, 779 (4th Cir.

1993), we held that counsel was not ineffective for failing to

seek    a          judgment      of      acquittal      because        counsel        was

“demonstrat[ing]        his     sound    evaluation     of   [the]     likelihood       of

success.”      Further, in Williams v. Kelly, 816 F.2d 939, 949-50

(4th   Cir.    1987),     we    found    that    counsel’s      failure   to     file    a

motion to strike was a reasonable strategic decision, one we

declined      to    second     guess.      We    find   that,    in    light     of   the

substantial evidence presented that Mayberry possessed a firearm

as a convicted felon on May 21, 2005, counsel’s decision not to

file a Rule 29 motion for acquittal was a reasonable strategic

decision.      Accordingly, Mayberry has not conclusively shown that

he received ineffective assistance of counsel.

                                          III.

              Finally,        Mayberry    argues     that    the      district    court

committed plain error in the jury instructions by failing to

clearly state which firearm was at issue.                    Mayberry argues that,

because of the district court’s error, the jury may have been

confused and the verdict not unanimous that Mayberry possessed a

particular firearm -- a .380 caliber Hi Point pistol.



                                            6
              Because           Mayberry      failed          to     object        to     the    jury

instructions at trial, we review for plain error.                                   United States

v.    Hastings,       134       F.3d    235,       239        (4th    Cir.        1998).        “Jury

instructions         are    reviewed       to      determine          whether,          taken   as    a

whole,    the       instructions         fairly            state     the    controlling         law.”

United    States v.         McQueen,       445     F.3d       757,     759      (4th     Cir.   2006)

(internal quotation marks, alterations, and citation omitted).

              In this case, 18 U.S.C. § 922(g)(1) (2006) provides

the   controlling          law.        That    statute         makes       it     unlawful      for   a

convicted felon to possess any firearm.                                The identity of the

firearm    is       not    an    element      of       the    offense;       thus       any   firearm

suffices to trigger a violation of § 922(g)(1).                                          See United

States v. Talbert, 501 F.3d 449, 451–52 (5th Cir. 2007), United

States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004), United

States v. Verrecchia, 196 F.3d 294, 298–99 (1st Cir. 1999).

      We find that the district court’s jury instructions, when

taken    as     a    whole,       fairly      state          the   controlling          law.      The

district court read the charge in the indictment, that Mayberry

possessed       “firearms,        including            a   HiPoint,        .380    caliber      semi-

automatic pistol,” and instructed the jurors on the elements of

the crime, including that they could only find Mayberry guilty

if they found that Mayberry “knowingly possessed a firearm and

ammunition as charged.”                 The district court also instructed the



                                                   7
jury that its decision was required to be unanimous.              Therefore,

the district court did not err in its jury instructions.

            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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