US v. Vincent Myer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00093-1 Copies to all parties and the district court/agency. [998787803].. [11-4568, 11-4583]

Download PDF
Appeal: 11-4568 Document: 37 Date Filed: 02/14/2012 Page: 1 of 8 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4568 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VINCENT ANTA MYERS, Defendant - Appellant.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: Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges. February 14, 2012 Appeal: 11-4568 Document: 37 Date Filed: 02/14/2012 Page: 2 of 8 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 11-4568 Document: 37 Date Filed: 02/14/2012 Page: 3 of 8 PER CURIAM: In these consolidated appeals, Vincent Myers appeals his conviction charges (No. and forty-one-month 11-4568); and the sentence revocation on of federal his drug supervised release from a prior federal sentence, and resulting thirty-sixmonth 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). district court’s judgment in No. We therefore affirm the 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 conducted by police in West Virginia. from controlled buys 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 propriety of the sentence. for a new trial, and (3) the We affirm. We review de novo a district court’s decision to deny a Rule 29 motion for a judgment of acquittal. * The jury acquitted Myers of a third count. 3 United States v. Appeal: 11-4568 Document: 37 Date Filed: 02/14/2012 Page: 4 of 8 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.” 572 (4th Cir.) United States v. Penniegraft, 641 F.3d 566, (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 4 Appeal: 11-4568 Document: 37 from Myers. Date Filed: 02/14/2012 Page: 5 of 8 These accounts were supported, at least in part, by the recordings captured by a concealed device carried by the informant during indicated his each controlled awareness of the buy. Additionally, fact that Myers 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. review such a ruling for abuse of discretion. Lighty, 616 F.3d 321, 374 (4th Cir. 2010). We United States v. 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, 7495 Appeal: 11-4568 Document: 37 Date Filed: 02/14/2012 Page: 6 of 8 52 (1971) (plurality opinion). Accordingly, court of determined, the admission the as the district recordings trial was proper and did not warrant a new trial. at Myers’ See United States v. Van Metre, 150 F.3d 339, 347 (4th Cir. 1998). The informant. same is true for the alleged bias of the “A jury verdict is not to be overturned except in the rare circumstance when the evidence weighs heavily against it.” 2006) United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. (internal recordings quotation and substantially the testimony corroborated controlled buys. marks the omitted). of Here, two police informant’s audio officers account of the 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 reasonableness, standard.” considering of his sentence. applying a We review “deferential a Gall v. United States, 552 U.S. 38, 41 (2007). substantive reasonableness, a sentence is we within a presume we properly must Id. determined is into When, as advisory range, reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 6 it take In Guidelines 2007). that for abuse-of-discretion account the “totality of the circumstances.” here, sentence substantively Appeal: 11-4568 Document: 37 Date Filed: 02/14/2012 Page: 7 of 8 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 statements on the regarding the informant’s total admittedly quantity of inconsistent oxycodone he purchased from Myers. We rebut the conclude these arguments are not sufficient to presumption of within-Guidelines sentence. reasonableness we accord to Myers’ 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. 114568, 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 7 Appeal: 11-4568 before Document: 37 the court Date Filed: 02/14/2012 and argument would Page: 8 of 8 not aid the decisional process. AFFIRMED 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?