United States v. Myers

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4870
ANDRE WALTER MYERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CR-00-45)
Submitted: May 20, 2002
Decided: June 21, 2002
Before WIDENER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert B. Rigney, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Darryl J. Mitchell, Assistant United States Attorney, Norfolk, Vir-
ginia, for Appellee.
2 UNITED STATES v. MYERS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Andre Walter Myers was convicted after a jury trial of being a
felon in possession of a firearm and ammunition, in violation of 18
U.S.C.A. §§ 922(g)(1), 924(a)(2) (West 2000). Myers argues his sen-
tence violates Apprendi v. New Jersey, 530 U.S. 466 (2000); the dis-
trict court erred in denying his motion for judgment of acquittal; the
application of 18 U.S.C.A. § 924(e) (West 2000) to Myers’ sentence
violates the Ex Post Facto Clause; and he did not qualify for an
Armed Career Criminal ("ACC") enhancement. Finding no reversible
error, we affirm.
Myers argues this court should apply the Supreme Court’s decision
in Apprendi v. New Jersey, 530 U.S. 466 (2000), to his ACC enhance-
ment based on his prior convictions. This court has recently rejected
Myers’ Apprendi-based argument. See United States v. Sterling, 283
F.3d 216, 219-20 (4th Cir. 2002).
Myers also argues the district court erred in denying his motion for
acquittal. This court reviews de novo the district court’s decision to
deny a motion for judgment of acquittal. United States v. Romer, 148
F.3d 359, 364 (4th Cir. 1998). To determine whether there was suffi-
cient evidence, we consider whether the evidence, viewed in the light
most favorable to the Government, was sufficient for a rational trier
of fact to have found the essential elements of the crime beyond a rea-
sonable doubt. Id.; United States v. Burgos, 94 F.3d 849, 862-63 (4th
Cir. 1996) (en banc).
Myers argues the evidence did not support the determination he
possessed a weapon. The evidence supporting possession included a
police officer’s testimony that he observed Myers reach into his
waistband and retrieve a metal object that the officer recognized as a
gun. Myers threw the object, and the officer further testified he
UNITED STATES v. MYERS 3
observed another officer recover the gun from the area where the
object was thrown. As to Myers’ argument that the police officer’s
testimony was contradictory with that of another officer, the resolu-
tion of the officers’ testimony was a jury question. See Romer, 148
F.3d at 364 ("[W]e are not entitled to weigh the evidence or to assess
the credibility of witnesses, but must assume that the jury resolved all
contradictions . . . in favor of the Government." (citations and internal
quotations omitted)).
Myers argues the application of U.S. Sentencing Guidelines Man-
ual § 4B1.4 (2000), the Sentencing Guidelines provision applicable to
Myers’ § 924(e) enhancement, violated the Ex Post Facto Clause
because one of Myers’ predicate offenses was committed before the
enactment of the relevant guidelines provision and § 924(e). This Cir-
cuit has rejected this argument. United States v. Presley, 52 F.3d 64,
68 (4th Cir. 1995).
Myers also argues his New York state conviction for attempted
robbery, second degree, does not qualify as a predicate offense under
§ 924(e), because Myers was a juvenile at the time of the offense, and
no violence was involved in the offense. We review de novo the des-
ignation of a prior conviction as a predicate felony under § 924(e).
See United States v. Brandon, 247 F.3d 186, 188 (4th Cir. 2001).
Myers’ conviction was an adult conviction. When the defendant was
prosecuted as an adult, it is irrelevant that the defendant was a juve-
nile at the time of the offense. United States v. Lender, 985 F.2d 151,
155-56 (4th Cir. 1993).
In determining whether a conviction is a predicate offense, courts
are to employ a categorical approach. Taylor v. United States, 495
U.S. 575, 600-02 (1990). We have reviewed the statutory definition
of the applicable New York statute regarding attempted robbery, sec-
ond degree, and find it qualifies as a violent felony under § 924(e).
See United States v. Brown, 52 F.3d 415, 425-26 (2d Cir. 1995).
We affirm Myers’ conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED