US v. Gregory Myers, No. 09-5112 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5112 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY THOMAS MYERS, a/k/a Gregory T. Myers, P.C., Dr. Gregory T. Myers, d/b/a Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:07-cr-00255) Submitted: October 15, 2010 Decided: November 22, 2010 Before KING, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. James B. Craven, III, Durham, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gregory T. Myers appeals the seventy-one month sentence imposed by the district court after he pled guilty to two counts (2006), of and mail one fraud count in of violation aiding and of 18 abetting violation of 18 U.S.C. §§ 2, 1341 (2006). U.S.C. mail § 1341 fraud in On appeal, Myers argues that the district court committed procedural error in allowing his ex-wife to make an unsworn statement at sentencing because she was not a crime victim as that term is defined under 18 U.S.C. § 3771 (2006). Myers further contends that the district court erred in not placing the witness under oath prior to her statement, and not allowing him an opportunity to crossexamine her. victim The Government argues that the witness was a crime because she was affected by Myers s crime. The Government also argues that even if the witness was not a crime victim, her statement was relevant to Myers s background, conduct, and character, and the district court properly admitted the statement for the purpose of fashioning an appropriate sentence under 18 U.S.C. § 3661 (2006). We abuse of Carter, review discretion 564 F.3d a sentence standard 325, 328 for of (4th reasonableness, review. Cir. United 2009). using an States v. Similarly, a district court s rulings regarding the admission or exclusion of evidence will not be reversed absent an abuse of discretion. 2 United States v. Stitt, 250 F.3d 878, 896 (4th Cir. 2001). A district court abuses its discretion when it makes an error of law. Koon Evidentiary v. United rulings are States, also 518 U.S. subject to 81, review 100 for (1996). harmless error under Fed. R. Crim. P. 52(a), and will be found harmless if the reviewing erroneous action court from can the conclude, whole, that without the stripping judgment was the not substantially swayed by the error. United States v. Brooks, 111 (internal F.3d 365, 371 (4th Cir. 1997) quotations and citation omitted). Under the Crime Victims Rights Act ( CVRA ), a crime victim has [t]he right to be reasonably heard at any public proceeding in the district court involving sentencing, or any parole proceeding. release, plea, 18 U.S.C. § 3771(a)(4). A crime victim is defined as a person directly and proximately harmed as a result of the commission of a Federal offense. U.S.C. § 3771(e). 18 We need not determine, however, whether the witness was a crime victim under 18 U.S.C. § 3771, as it is clear that her statement was admissible for the purpose of imposing an appropriate sentence under 18 U.S.C. § 3661. Under 18 U.S.C. § 3661, [n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of 3 imposing an appropriate sentence. the record, we conclude that After a thorough review of the witness s statement was relevant to Myers s background, character, and conduct, and was thus admissible sentence. for the purpose of imposing an appropriate While Myers generally objected to the admissibility of the statement in the district court, he did not ask that the witness be sworn prior to making the statement. for an opportunity to cross-examine statement was somehow unreliable. her or Nor did he ask argue that her Issues raised for the first time on appeal are subject to review for plain error. United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). See To establish plain error, Myers must show that an error (1) was made, (2) is plain (i.e., clear or obvious), and (3) affects substantial rights. (4th Cir. 2010). United States v. Lynn, 592 F.3d 572, 577 Here, even assuming error, we find that Myers has not shown that the error affected his substantial rights. Accordingly, we affirm Myers s sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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