UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Wally Hayes appeals his conviction and 240-

month sentence for conspiracy to distribute oxycodone, in 

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 he acknowledged providing erroneous 

testimony against Hayes in order to get his 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. Burks v. United States, 437 U.S. 1, 17 (1978); United 

States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001). 

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“[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 v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) 

(citations omitted). We do not review the 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 chain” during closing arguments, and a witness’s 

reference to his participation in cockfighting, were unduly 

prejudicial. 

 A district court may grant a defendant’s motion for a 

new trial “if the interest of justice so requires.” Fed. R. 

3 
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. The characterization of Hayes’ role 

was entirely supported 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) 

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(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,” we 

apply a “deferential abuse of discretion standard.” Gall v. 

United States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007). We 

first must “ensure that the district court committed no 

significant procedural error.” Id. at 597. Only if the 

sentence is procedurally reasonable can we evaluate the 

substantive reasonableness of the sentence, again using the 

abuse of discretion standard of review. Id.; see also United 

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). In our 

determination of whether the district court committed any 

significant procedural error, we look to any failure in the 

calculation (or the improper calculation) of 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. Gall, 128 S. Ct. at 597. We must also ensure 

the district court satisfied its obligation to “make an 

individualized assessment based on the facts presented” when 

rendering a sentence, id., applying the relevant § 3553(a) 

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factors to the specific circumstances of the case and the 

defendant, and “state in open court” the particular reasons 

supporting its chosen sentence. Carter, 564 F.3d at 328; see 

also 18 U.S.C. § 3553(c) (2006). A brief statement of the 

reasons suffices under § 3553(c)(1). 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. The district court did not fail 

to consider the § 3553(a) factors as they related to the 

arguments made at sentencing. The Government argued 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 the shorter sentences given to his 

co-conspirators. 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. 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