US v. Thomas Wally Hayes, No. 07-4568 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4568 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS WALLY HAYES, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 month sentence Wally for Hayes appeals conspiracy to his conviction distribute and oxycodone, 240in 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 testimony against he Hayes acknowledged in order to providing get his erroneous 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. States Burks v. United States, 437 U.S. 1, 17 (1978); United v. Stewart, 256 F.3d 2 231, 249 (4th Cir. 2001). [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 (citations v. Burgos, omitted). We 94 F.3d 849, do not 862 review (4th the Cir. 1996) 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 reference chain to his during closing participation arguments, in and cockfighting, a witness s were unduly prejudicial. A district court may grant a defendant s motion for a new trial if the interest of justice so requires. 3 Fed. R. 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. was entirely supported The characterization of Hayes role 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) 4 (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, apply a deferential abuse of discretion standard. we Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007). We first no must ensure significant sentence that procedural is substantive the district error. procedurally reasonableness the committed 597. at Id. reasonable of court Only can we sentence, abuse of discretion standard of review. if the evaluate the again using Id.; see also United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). determination of whether significant procedural calculation (or the the error, district we improper look the court to calculation) any of In our committed failure the in any 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. the district individualized rendering a Gall, 128 S. Ct. at 597. court satisfied assessment sentence, its based id., on obligation the applying 5 We must also ensure facts the to make presented relevant an when § 3553(a) factors to defendant, the and specific state circumstances in open court supporting its chosen sentence. also 18 U.S.C. § 3553(c) of the the case and particular the reasons Carter, 564 F.3d at 328; see (2006). A reasons suffices under § 3553(c)(1). brief statement of the 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. to consider arguments the made § 3553(a) at The district court did not fail factors sentencing. The as they related Government to argued the 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 co-conspirators. the shorter sentences given to his 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. legal We dispense with oral argument because the facts and contentions are adequately 6 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7
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