UNPUBLISHED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: February 14, 2012

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 and forty-one-month sentence on federal drug 

charges (No. 11-4568); and the revocation of his 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). We therefore affirm the 

district court’s judgment in No. 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 from controlled buys 

conducted by police in West Virginia. 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 for a new trial, and (3) the 

propriety of the sentence. We affirm.

We review de novo a district court’s decision to deny 

a Rule 29 motion for a judgment of acquittal. United States v. 

 

* The jury acquitted Myers of a third count.
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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.” United States v. Penniegraft, 641 F.3d 566, 

572 (4th Cir.) (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. These accounts were supported, at least in part, by 

the recordings captured by a concealed device carried by the 

informant during each controlled buy. Additionally, Myers 

indicated his awareness of the fact that 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. We 

review such a ruling for abuse of discretion. United States v. 

Lighty, 616 F.3d 321, 374 (4th Cir. 2010). 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, 749-
6

52 (1971) (plurality opinion). Accordingly, as the district 

court determined, the admission of the recordings at Myers’ 

trial was proper and did not warrant a new trial. See United 

States v. Van Metre, 150 F.3d 339, 347 (4th Cir. 1998). 

The same is true for the alleged bias of the 

informant. “A jury verdict is not to be overturned except in 

the rare circumstance when the evidence weighs heavily against 

it.” United States v. Smith, 451 F.3d 209, 216-17 (4th Cir. 

2006) (internal quotation marks omitted). Here, audio 

recordings and the testimony of two police officers 

substantially corroborated the informant’s account of the 

controlled buys. 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 of his sentence. We review a sentence for 

reasonableness, applying a “deferential abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In 

considering substantive reasonableness, we must take into 

account the “totality of the circumstances.” Id. When, as 

here, a sentence is within a properly determined advisory 

Guidelines range, we presume that it is substantively 

reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007). 
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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 on the informant’s admittedly inconsistent

statements regarding the total quantity of oxycodone he 

purchased from Myers. 

We conclude these arguments are not sufficient to 

rebut the presumption of reasonableness we accord to Myers’ 

within-Guidelines sentence. 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. 11-

4568, 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
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before the court and argument would not aid the decisional 

process.

AFFIRMED