Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.united States of America, Appellee, v. Jerry Myric Mihm, Appellant, 977 F.2d 586 (8th Cir. 1992)

Jerry Myric Mihm was convicted by jury verdict of knowingly and intentionally aiding and abetting the manufacture of 1,000 or more marijuana plants, in violation of 21 U.S.C. § 841(a) (1), and of conspiracy to manufacture marijuana, in violation of 21 U.S.C. § 846. The district court¹  denied Mihm's posttrial motions for judgment of acquittal and for a new trial. The district court sentenced Mihm to 121 months imprisonment, followed by five years of supervised release. Mihm appeals the denial of his posttrial motions and his sentence.

Mihm argues that the district court erred in denying his posttrial motions for judgment of acquittal and for a new trial on the basis of insufficiency of the evidence. In deciding a motion for judgment of acquittal, a "judgment entered upon guilty verdicts of the jury 'must be upheld if, viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, we conclude that a reasonable fact-finder could have found guilt beyond a reasonable doubt.' " United States v. Bennett, 956 F.2d 1476, 1478 (8th Cir. 1992) (citation omitted). "Deciding a motion for a new trial is a matter committed to the sound discretion of the trial court." United States v. Wang, 964 F.2d 811, 813 (8th Cir. 1992) (citation omitted). We have carefully reviewed the evidence introduced at trial, find Mihm's arguments to be without merit, and affirm both the denial of the motion for judgment of acquittal and the denial of the motion for new trial.

Mihm also argues that the district court erred in counting the total number of plants of marijuana rather than the number of saleable plants in determining defendant's sentence under the sentencing guidelines. This argument has already been rejected by this court. United States v. Curtis, 965 F.2d 610, 616 (8th Cir. 1992) (citations omitted).

We affirm the district court's denial of Mihm's motion for judgment of acquittal and for a new trial. We also affirm the sentence imposed upon Mihm. See 8th Cir. R. 47B.