UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4568
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS WALLY HAYES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:06-cr-00010)
Submitted: July 7, 2009 Decided: July 20, 2009
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Matthew A. Victor, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant. Julia C. Dudley, United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Wally Hayes appeals his conviction and 240-
month sentence for conspiracy to distribute oxycodone, in
violation of 21 U.S.C. § 841 (2006), and the district court’s
denial of his motion for new trial. We affirm.
I. Sufficiency of the Evidence
Hayes argues that the evidence was not sufficient to
support his conviction because the case against him consisted
solely of witness testimony. He contends that the testimony of
two witnesses for the Government, Randall and Wesley Middleton,
was discredited by testimony by two inmates at the city jail in
Roanoke, Virginia, Roger Crowder and Steve Knapp. Crowder and
Knapp testified that Randall Middleton told them he had never
met or bought drugs from Hayes, contrary to Middleton’s
testimony that he bought oxycodone directly from Hayes on two
occasions, and that he acknowledged providing erroneous
testimony against Hayes in order to get his own sentence
reduced.
When a defendant challenges the sufficiency of the
evidence, we consider whether substantial evidence, viewed in
the light most favorable to the Government, supports the jury’s
verdict. Burks v. United States, 437 U.S. 1, 17 (1978); United
States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001).
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“[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(citations omitted). We do not review the credibility of
witnesses and assume the jury resolved all contradictions in the
testimony in favor of the Government. United States v. Sun, 278
F.3d 302, 313 (4th Cir. 2002).
The jury had the opportunity to compare the
credibility of the Government’s witnesses to that of Crowder and
Knapp, and we will not review its determination. Assuming, as
we must, that the jury found the Government’s witnesses to be
more credible, their testimony was sufficient to support a
conclusion of Hayes’ guilt beyond a reasonable doubt.
II. Denial of Motion for New Trial
Hayes argues that the district court erred in denying
his motion for new trial because the prosecutor’s
characterization of his role in the conspiracy as “the top of
the food chain” during closing arguments, and a witness’s
reference to his participation in cockfighting, were unduly
prejudicial.
A district court may grant a defendant’s motion for a
new trial “if the interest of justice so requires.” Fed. R.
3
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. Wilson, 118 F.3d 228, 237 (4th Cir.
1997). This court reviews the denial of a Rule 33 motion for
abuse of discretion. United States v. Adam, 70 F.3d 776, 779
(4th Cir. 1995).
The district court did not abuse its discretion in
denying Hayes’ motion for new trial. As discussed above, the
evidence did not weigh heavily against the verdict, and it is
unlikely that Hayes was prejudiced by either the prosecution’s
characterization of his role in the conspiracy or the witness’s
reference to cockfighting. The characterization of Hayes’ role
was entirely supported by the evidence that he supplied
oxycodone to several witnesses, who in turn distributed the drug
to others. The description of Hayes’ participation in
cockfighting was not extensive and did not prejudice Hayes, in
light of the substantial evidence that supported the jury’s
verdict.
III. Reasonableness of Sentence
Hayes argues that the district court did not
adequately consider the factors set forth in 18 U.S.C. § 3553(a)
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(2006), other than his criminal history, in determining his
sentence.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness, and “whether inside, just
outside, or significantly outside the Guidelines range,” we
apply a “deferential abuse of discretion standard.” Gall v.
United States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007). We
first must “ensure that the district court committed no
significant procedural error.” Id. at 597. Only if the
sentence is procedurally reasonable can we evaluate the
substantive reasonableness of the sentence, again using the
abuse of discretion standard of review. Id.; see also United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). In our
determination of whether the district court committed any
significant procedural error, we look to any failure in the
calculation (or the improper calculation) of the Guidelines
range, the treatment of the Guidelines as mandatory, the failure
to consider the § 3553(a) factors, the selection of a sentence
using clearly erroneous facts, and any failure to adequately
explain the chosen sentence and any deviation from the advisory
Guidelines range. Gall, 128 S. Ct. at 597. We must also ensure
the district court satisfied its obligation to “make an
individualized assessment based on the facts presented” when
rendering a sentence, id., applying the relevant § 3553(a)
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factors to the specific circumstances of the case and the
defendant, and “state in open court” the particular reasons
supporting its chosen sentence. Carter, 564 F.3d at 328; see
also 18 U.S.C. § 3553(c) (2006). A brief statement of the
reasons suffices under § 3553(c)(1). Rita v. United States, 127
S. Ct. 2456, 2468-69 (2007).
The district court did not abuse its discretion in
sentencing Hayes to 240 months’ imprisonment, the high end of
the advisory guidelines range. The district court did not fail
to consider the § 3553(a) factors as they related to the
arguments made at sentencing. The Government argued for a
sentence at the high end of the guidelines range based upon
Hayes’ extensive criminal history, and Hayes argued for a lower
sentence based upon the shorter sentences given to his
co-conspirators. The court chose to sentence Hayes at the high
end of the guidelines range based upon his criminal history,
rejecting his argument in favor of the Government’s argument.
The court’s statement of its reasons for imposing the sentence,
although succinct, was sufficient under § 3553(c)(1).
For the reasons stated above, we affirm the judgment
of the district court and the denial of Hayes’ motion for new
trial. 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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