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UNPUBLISHED PER CURIAM OPINION filed.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]
Appeal: 11-4568
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Date Filed: 02/14/2012
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UNPUBLISHED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
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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.
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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.”
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
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from Myers.
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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
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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
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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
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
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before
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the
court
Date Filed: 02/14/2012
and
argument
would
Page: 8 of 8
not
aid
the
decisional
process.
AFFIRMED
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