United States v. Vincent Myers

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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