United States v. Vincent Myers ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4568
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT ANTA MYERS,
Defendant - Appellant.
No. 11-4583
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT MYERS,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:10-cr-00093-1; 3:01-cr-00099-1)
Submitted: January 18, 2012 Decided: February 14, 2012
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,
for Appellant. R. Booth Goodwin II, United States Attorney,
Joseph F. Adams, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Vincent Myers appeals
his conviction and forty-one-month sentence on federal drug
charges (No. 11-4568); and the revocation of his supervised
release from a prior federal sentence, and resulting thirty-six-
month sentence (No. 11-4583). Because Myers’ brief raises no
challenges to the supervised release revocation or sentence, he
has abandoned any such claims. See United States v. Brooks, 524
F.3d 549, 556 n.11 (4th Cir. 2008). We therefore affirm the
district court’s judgment in No. 11-4583, and proceed to
consideration of the claims raised in No. 11-4568.
A jury convicted Myers of two counts of distributing
oxycodone, in violation of 21 U.S.C. § 841(a)(1) (2006),* and the
district court imposed concurrent forty-one-month sentences of
imprisonment. The charges stemmed from controlled buys
conducted by police in West Virginia. Myers challenges: (1) the
district court’s denial of his Fed. R. Crim. P. 29 motion for a
judgment of acquittal, (2) the district court’s denial of his
Fed. R. Crim. P. 33 motion for a new trial, and (3) the
propriety of the sentence. We affirm.
We review de novo a district court’s decision to deny
a Rule 29 motion for a judgment of acquittal. United States v.
*
The jury acquitted Myers of a third count.
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Hickman, 626 F.3d 756, 762-63 (4th Cir. 2010), cert. denied, 132
S. Ct. 469 (2011). Where such a motion alleges insufficiency of
the evidence, we must sustain the jury’s verdict if, viewing the
evidence in the light most favorable to the government, “any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Green, 599 F.3d 360, 367 (4th Cir.) (internal quotation marks
omitted), cert. denied, 131 S. Ct. 271, 340 (2010). Because the
credibility of witnesses is properly assessed by the jury, we
may not make our “own credibility determinations but must assume
that the jury resolved all contradictions in testimony in favor
of the Government.” United States v. Penniegraft, 641 F.3d 566,
572 (4th Cir.) (internal quotation marks and alteration
omitted), cert. denied, 132 S. Ct. 564 (2011).
To convict Myers of violating 21 U.S.C. § 841(a)(1),
the Government was required to prove that (1) he knowingly or
intentionally distributed oxycodone, and (2) he knew that the
drug “was a controlled substance under the law.” United States
v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005) (internal quotation
marks omitted).
Two law enforcement officers and an informant offered
substantially similar accounts of the controlled buys supporting
the charges against Myers, with the informant stating
unequivocally that he purchased all of the oxycodone in question
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from Myers. These accounts were supported, at least in part, by
the recordings captured by a concealed device carried by the
informant during each controlled buy. Additionally, Myers
indicated his awareness of the fact that oxycodone is a
prescription drug.
Moreover, the fact that the jury acquitted Myers of
one count does not undermine the validity of his convictions on
the remaining counts. See Green, 599 F.3d at 368-69.
Accordingly, we find no error in the district court’s denial of
Myers’ Rule 29 motion.
Next, we conclude that the district court did not err
in denying Myers’ Fed. R. Crim. P. 33 motion for new trial. We
review such a ruling for abuse of discretion. United States v.
Lighty, 616 F.3d 321, 374 (4th Cir. 2010). Myers asserts that a
new trial was appropriate due to the bias of the informant and
the fact that the recording of each controlled buy was obtained
in violation of the West Virginia Constitution. See State v.
Mullens, 650 S.E.2d 169, 173-78, 191 (W. Va. 2007).
Regarding the recordings, federal statutory and
constitutional law permit law enforcement officials to place an
electronic surveillance device on a consenting informant for
purposes of recording communications with third-party suspects
without a warrant or other judicial authorization. 18 U.S.C.
§ 2511(2)(c) (2006); United States v. White, 401 U.S. 745, 749-
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52 (1971) (plurality opinion). Accordingly, as the district
court determined, the admission of the recordings at Myers’
trial was proper and did not warrant a new trial. See United
States v. Van Metre, 150 F.3d 339, 347 (4th Cir. 1998).
The same is true for the alleged bias of the
informant. “A jury verdict is not to be overturned except in
the rare circumstance when the evidence weighs heavily against
it.” United States v. Smith, 451 F.3d 209, 216-17 (4th Cir.
2006) (internal quotation marks omitted). Here, audio
recordings and the testimony of two police officers
substantially corroborated the informant’s account of the
controlled buys. Accordingly, we find no abuse of discretion in
the district court’s denial of Myers’ Rule 33 motion.
Finally, we reject Myers’ challenge to the substantive
reasonableness of his sentence. We review a sentence for
reasonableness, applying a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In
considering substantive reasonableness, we must take into
account the “totality of the circumstances.” Id. When, as
here, a sentence is within a properly determined advisory
Guidelines range, we presume that it is substantively
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
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Myers claims that the district court erred in refusing
to reduce his sentence based on the fact that he previously
served a sentence for a federal crack cocaine offense, imposed
before the sentencing reforms effected by the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. Furthermore,
Myers suggests that the district court should have reduced his
sentence based on the informant’s admittedly inconsistent
statements regarding the total quantity of oxycodone he
purchased from Myers.
We conclude these arguments are not sufficient to
rebut the presumption of reasonableness we accord to Myers’
within-Guidelines sentence. The district court, upon assessing
the informant’s evidence concerning drug quantity, attributed to
Myers a relatively conservative amount that is justified by the
record. Further, the court made a thorough assessment of the
facts and § 3553(a) factors in announcing a sentence at the top
of the applicable Guidelines range. Therefore, this claim
warrants no relief.
We affirm Myers’ conviction and sentence in No. 11-
4568, and the revocation of supervised release and sentence in
No. 11-4583. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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