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The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2043

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Donald “Baby D” Smith, *

* [UNPUBLISHED]

Appellant. *

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Submitted: September 23, 2008

Filed: October 6, 2008

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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

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PER CURIAM.

A jury convicted Donald Gregory Smith, Jr., of being a felon in possession of

a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court1

 imposed a 100-month

sentence. Smith appeals, claiming insufficiency of evidence and sentencing error.

Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.
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Conviction under 18 U.S.C. § 922(g)(1) requires that the defendant “had been

previously convicted of a crime punishable by imprisonment of more than one year,

that he knowingly possessed a firearm, and that the firearm had been in or affected

interstate commerce.” United States v. Bradley, 473 F.3d 866, 867 (8th Cir. 2007).

Smith stipulated that he was a felon and that the weapon traveled in interstate

commerce; the only issue is possession. Three government witnesses testified that

Smith possessed a Norico SKS rifle. Two other witnesses stated that Smith admitted

possessing the rifle. In a taped interview, Smith acknowledged being present where

witnesses placed him. This court “will uphold the verdict if there is any interpretation

of the evidence that could lead a reasonable-minded jury to find the defendant guilty

beyond a reasonable doubt.” United States v. Garcia-Hernandez, 530 F.3d 657, 661

(8th Cir. 2008). While Smith attacks the credibility of the government witnesses, “[i]t

is the task of the jury to evaluate a witness’s credibility; attacks on the sufficiency of

the evidence based on the witnesses’ credibility are rarely an appropriate ground for

reversal.” United States v. Mitchell, 528 F.3d 1034, 1041 (8th Cir. 2008). Although

the jury acquitted Smith of two related counts of possessing weapons, a jury may

rationally convict on one count while acquitting on others. Sufficient evidence

supports the conviction for possessing the Norico SKS rifle.

Smith also argues that the district court erred by not granting a downward

variance. Determining the Guideline range to be 100-to-125 months, the court

imposed a 100-month sentence, followed by three years of supervised release. Smith

does not assert that the court miscalculated the range or impermissibly treated it as

presumptively reasonable. Rather, he contends that the court failed to give

appropriate weight to his troubled childhood, drug addiction, responsibility for minor

children, and need for education; he also requests a lower sentence due to the nature

and circumstances of the offense and the need to avoid unwarranted sentence

disparities. This court reviews the district court’s sentence for abuse of discretion.

United States v. Gall, --- U.S. ----, 128 S. Ct. 586, 591 (2007); United States v. Shy,

538 F.3d 933, 937 (8th Cir. 2008), citing Gall, supra. At sentencing, the court
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listened to Smith’s arguments and considered each of the 18 U.S.C. § 3553(a) factors.

The district court did not abuse its discretion when sentencing Smith.

The judgment is affirmed.

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