UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY THOMAS MYERS, a/k/a Dr. Gregory T. Myers, d/b/a
Gregory T. Myers, P.C.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00255)
Submitted: October 15, 2010 Decided: November 22, 2010
Before KING, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory T. Myers appeals the seventy-one month
sentence imposed by the district court after he pled guilty to
two counts of mail fraud in violation of 18 U.S.C. § 1341
(2006), and one count of aiding and abetting mail fraud in
violation of 18 U.S.C. §§ 2, 1341 (2006). On appeal, Myers
argues that the district court committed procedural error in
allowing his ex-wife to make an unsworn statement at sentencing
because she was not a crime victim as that term is defined under
18 U.S.C. § 3771 (2006). Myers further contends that the
district court erred in not placing the witness under oath prior
to her statement, and not allowing him an opportunity to cross-
examine her. The Government argues that the witness was a crime
victim because she was affected by Myers’s crime. The
Government also argues that even if the witness was not a crime
victim, her statement was relevant to Myers’s background,
conduct, and character, and the district court properly admitted
the statement for the purpose of fashioning an appropriate
sentence under 18 U.S.C. § 3661 (2006).
We review a sentence for reasonableness, using an
abuse of discretion standard of review. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). Similarly, a
district court’s rulings regarding the admission or exclusion of
evidence will not be reversed absent an abuse of discretion.
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United States v. Stitt, 250 F.3d 878, 896 (4th Cir. 2001). A
district court “abuses its discretion when it makes an error of
law.” Koon v. United States, 518 U.S. 81, 100 (1996).
Evidentiary rulings are also subject to review for harmless
error under Fed. R. Crim. P. 52(a), and will be found harmless
if the reviewing court can conclude, “without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error.” United States v. Brooks,
111 F.3d 365, 371 (4th Cir. 1997) (internal quotations and
citation omitted).
Under the Crime Victims Rights Act (“CVRA”), a crime
victim has “[t]he right to be reasonably heard at any public
proceeding in the district court involving release, plea,
sentencing, or any parole proceeding.” 18 U.S.C. § 3771(a)(4).
A crime victim is defined as “a person directly and proximately
harmed as a result of the commission of a Federal offense.” 18
U.S.C. § 3771(e). We need not determine, however, whether the
witness was a crime victim under 18 U.S.C. § 3771, as it is
clear that her statement was admissible for the purpose of
imposing an appropriate sentence under 18 U.S.C. § 3661.
Under 18 U.S.C. § 3661, “[n]o limitation shall be
placed on the information concerning the background, character,
and conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of
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imposing an appropriate sentence.” After a thorough review of
the record, we conclude that the witness’s statement was
relevant to Myers’s background, character, and conduct, and was
thus admissible for the purpose of imposing an appropriate
sentence. While Myers generally objected to the admissibility
of the statement in the district court, he did not ask that the
witness be sworn prior to making the statement. Nor did he ask
for an opportunity to cross-examine her or argue that her
statement was somehow unreliable. Issues raised for the first
time on appeal are subject to review for plain error. See
United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To
establish plain error, Myers “must show that an error (1) was
made, (2) is plain (i.e., clear or obvious), and (3) affects
substantial rights.” United States v. Lynn, 592 F.3d 572, 577
(4th Cir. 2010). Here, even assuming error, we find that Myers
has not shown that the error affected his substantial rights.
Accordingly, we affirm Myers’s 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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