UNPUBLISHED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 Dr. Gregory T. Myers, d/b/a 

Gregory T. Myers, P.C.,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Gregory T. Myers appeals the seventy-one month 

sentence imposed by the district court after he pled guilty to 

two counts of mail fraud in violation of 18 U.S.C. § 1341 

(2006), and one count of aiding and abetting mail fraud in 

violation of 18 U.S.C. §§ 2, 1341 (2006). 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. The Government argues that the witness was a crime 

victim 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 review a sentence for reasonableness, using an 

abuse of discretion standard of review. United States v. 

Carter, 564 F.3d 325, 328 (4th Cir. 2009). Similarly, a

district court’s rulings regarding the admission or exclusion of 

evidence will not be reversed absent an abuse of discretion. 
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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 v. United States, 518 U.S. 81, 100 (1996). 

Evidentiary rulings are also subject to review for harmless 

error under Fed. R. Crim. P. 52(a), and will be found harmless 

if the reviewing court can conclude, “without stripping the 

erroneous action from the whole, that the judgment was not 

substantially swayed by the error.” United States v. Brooks, 

111 F.3d 365, 371 (4th Cir. 1997) (internal 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 release, plea, 

sentencing, or any parole proceeding.” 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.” 18 

U.S.C. § 3771(e). 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 
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imposing an appropriate sentence.” After a thorough review of 

the record, we conclude that the witness’s statement was 

relevant to Myers’s background, character, and conduct, and was 

thus admissible for the purpose of imposing an appropriate 

sentence. 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. Nor did he ask 

for an opportunity to cross-examine her or argue that her 

statement was somehow unreliable. Issues raised for the first 

time on appeal are subject to review for plain error. See

United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). 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.” United States v. Lynn, 592 F.3d 572, 577

(4th Cir. 2010). 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