United States v. Roberts

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-51301
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELZIE ROOSEVELT ROBERTS, JR., also known as Elzie Roosevelt
Roberts,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-35-1
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Elzie Roosevelt Roberts, Jr., appeals his conviction by a
jury of two counts of possession of an unregistered firearm in
violation of the National Firearms Act, specifically 26 U.S.C.
§§ 5845(a), 5861(d), and 5871. The district court sentenced
Roberts to concurrent terms of 100 months of imprisonment and
concurrent terms of three years of supervised release.
Roberts argues that the evidence was insufficient to prove
that he knew of the characteristics of the sawed-off shotgun that

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prohibit its possession under § 5861(d). Because Roberts failed
to move for a judgment of acquittal, his sufficiency challenge is
reviewed only for a manifest miscarriage of justice. United
States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). Such a
miscarriage of justice occurs when the record is “devoid of
evidence of guilt or the evidence [is] so tenuous that a
conviction is shocking.” Id.
The Government was required to prove that Roberts knew of
the features of the weapon that made it a “firearm” under
§ 5845(a), specifically, that it was a shotgun having an overall
length of less than 26 inches or a barrel of less than 18 inches
in length. Staples v. United States, 511 U.S. 600, 619-20
(1994); United States v. Reyna, 130 F.3d 104, 109-10 (5th Cir.
1997); § 5845(a). The shotgun was admitted into evidence and
could be inspected by the jury. Its barrel was 10-1/2 inches
long and its overall length was only 17 inches. Such
characteristics are readily apparent and externally visible.
The record is not devoid of evidence of Roberts’s guilt.
Roberts’s conviction does not constitute a manifest miscarriage
of justice. See Staples, 511 U.S. at 616 n.11; Reyna, 130 F.3d
at 109 n.6; Avants, 367 F.3d at 449.
Accordingly, the judgment of the district court is AFFIRMED.

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