UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4914
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY EUGENE BROOKS, a/k/a Antonio Brooks,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (CR-05-6)
Submitted: April 17, 2006 Decided: July 13, 2006
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Riley H. Ross, III,
Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, John S. Davis,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Eugene Brooks was indicted for being a felon in
possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2000) (count one); and being an unlawful user of
controlled substances in possession of ammunition, in violation of
18 U.S.C. §§ 922(g)(3), 924(a)(2) (2000) (count two). At trial,
the district court granted his Fed. R. Crim. P. 29 motion for a
judgment of acquittal on the second count. However, the district
court denied the motion with respect to the first count, on which
the jury subsequently convicted Brooks. The district court
sentenced Brooks to eighty-seven months’ imprisonment, at the top
of the advisory Sentencing Guidelines range. Brooks appeals his
conviction and sentence.
First, Brooks contends that the district court erred in
denying his Rule 29 motion as it related to the first count in the
indictment. We review the district court’s decision to deny a Rule
29 motion de novo. United States v. Lentz, 383 F.3d 191, 199 (4th
Cir. 2004), cert. denied, 125 S. Ct. 1828 (2005). Where, as here,
the motion was based on insufficient evidence, “[t]he verdict of a
jury must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it.” Glasser v.
United States, 315 U.S. 60, 80 (1942). “[W]e have defined
‘substantial evidence,’ in the context of a criminal action, as
that evidence which ‘a reasonable finder of fact could accept as
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adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.’” United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc)).
With these principles in mind, we have reviewed the
record and conclude substantial evidence supports Brooks’
conviction. Thus, we conclude the district court did not err in
denying the Rule 29 motion on the first count.
Second, Brooks contends the district court abused its
discretion in denying his Fed. R. Crim. P. 33 motion for a new
trial. Specifically, Brooks argues that he was prejudiced when the
district court overruled his objection to evidence that had been
previously admitted as relevant to the second count. The district
court found that this evidence was also probative to the first
count and was not “substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
A district court may grant a defendant’s motion for a new
trial “if the interest of justice so requires.” Fed. R. Crim. P.
33(a). A district court “‘should exercise its discretion to grant
a new trial sparingly,’ and . . . should do so ‘only when the
evidence weighs heavily against the verdict,’” United States v.
Perry, 335 F.3d 316, 320 (4th Cir. 2003) (quoting United States v.
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Wilson, 118 F.3d 228, 237 (4th Cir. 1997)), cert. denied, 124 S.
Ct. 1408 (2004), or “when substantial prejudice has occurred,”
United States v. Jones, 542 F.2d 186, 211 (4th Cir. 1976). We
review the denial of a Rule 33 motion for abuse of discretion.
United States v. Adam, 70 F.3d 776, 779 (4th Cir. 1995). Whether
evidence is more probative than prejudicial under Rule 403 requires
a determination of whether “the risk that the jury will be excited
to irrational behavior is disproportionate to the probative value
of the evidence.” United States v. Tedder, 801 F.2d 1437, 1444
(4th Cir. 1986). After thoroughly considering the issue, the
district court did not find such a risk existed. Its findings were
neither arbitrary nor irrational. See United States v. Simpson,
910 F.2d 154, 157-58 (4th Cir. 1990). Therefore, we find no abuse
of discretion.
Finally, Brooks argues that his sentence is unreasonable.
After the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), a sentencing court is no longer bound by the range
prescribed by the Sentencing Guidelines. United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). In determining a sentence
post-Booker, however, sentencing courts are still required to
calculate and consider the guideline range prescribed thereby as
well as the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2005). Id.; see also United States v. Green, 436 F.3d 449,
455-56 (4th Cir. 2006). As stated in Hughes, we will generally
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affirm a post-Booker sentence if it is within the statutorily
prescribed range and is reasonable. Hughes, 401 F.3d at 546-47.
Further, “while we believe that the appropriate circumstances for
imposing a sentence outside the guideline range will depend on the
facts of individual cases, we have no reason to doubt that most
sentences will continue to fall within the applicable guideline
range.” United States v. White, 405 F.3d 208, 219 (4th Cir.),
cert. denied, 126 S. Ct. 668 (2005); see also Green, 436 F.3d at
457 (“[A] sentence imposed within the properly calculated
Guidelines range . . . is presumptively reasonable.” (internal
quotation marks omitted)).
Here, Brooks does not claim the district court
insufficiently considered the applicable Sentencing Guidelines; in
fact, the district court declined to apply two sentencing
enhancements proposed in the presentence report because the
evidence in support was too weak. The district court also
sentenced Brooks below the statutory maximum of ten years’
imprisonment. However, Brooks contends the district court gave
short shrift to its advisory sentencing considerations,
particularly the directives to sentence to a term no greater than
necessary and to avoid sentencing disparities. We find the
district court considered any and all issues relevant to Brooks’
sentence. Moreover, we recently concluded, contrary to Brooks’
argument, that § 3553’s admonishment to avoid sentencing
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disparities applies only to disparities between federal defendants
except in unusual circumstances not present here. See United
States v. Clark, 434 F.3d 684 (4th Cir. 2006). We find no
deficiency in Brooks’ sentence.
Accordingly, we affirm Brooks’ 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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