UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 96-4746

HORACE M. HARSHAW, Defendant-Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (CR-94-35)

Submitted: August 24, 1999

Decided: November 29, 1999

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James E. Gronquist, Charlotte, North Carolina, for Appellant. Mark T. Calloway, United States Attorney, Brian Lee Whisler, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

_________________________________________________________________ OPINION

PER CURIAM:

Horace Montrose Harshaw appeals his conviction and sentence for being a felon in possession of a firearm. He contends that the evi- dence was insufficient to sustain his conviction and that the trial court erred in departing from the Sentencing Guidelines. We affirm.

Harshaw asserts that there was insufficient evidence to prove he possessed the weapon found on his seat in his car. In reviewing a suf- ficiency claim on appeal, we must sustain the verdict if the record contains "substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States,

(1942). In applying this standard, we give due regard to the fact find- er's prerogative to resolve questions of credibility. See United States v. Burgos,

(4th Cir. 1996) (en banc).

The evidence introduced by the Government--including the obser- vation of a gun on Harshaw's car seat and his admission that the gun was his--amply supports the jury's verdict. Harshaw contends that some of this evidence was not credible, but such determinations are to be made by the finder of fact, not an appellate court. Accordingly, we hold that there was sufficient evidence of possession.

Harshaw next asserts that the court erred in departing from the Sen- tencing Guidelines based upon his lengthy criminal record. We review the sentencing court's decision for abuse of discretion. See Koon v. United States,

(1996).

In departing from the Guidelines, the court relied upon U.S. Sen- tencing Guidelines Manual § 4A1.3 (1995), which authorizes a sen- tence outside the guidelines range if the calculation of a defendant's criminal history category significantly understates or overstates the severity of her prior offenses. The court determined that § 4A1.3 applied because Harshaw accumulated nearly twice as many criminal history points as were required to place him in the highest criminal history category recognized by the Guidelines. In addition, numerous convictions and arrests in Harshaw's past were not incorporated into

2 the calculation of his criminal history category. In light of these cir- cumstances, we find no abuse of discretion by the district court.

For the foregoing reasons, we affirm Harshaw's conviction and sentence. 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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