UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4286

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HECTOR RUBEN MCGURK, a/k/a Ruben, a/k/a El Mechanico,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. James C. Cacheris,

Senior District Judge, sitting by designation. (3:02-cr-00190-1)

Submitted: July 1, 2008 Decided: August 27, 2008

Before MICHAEL and DUNCAN, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Trevor M. Fuller, FULLER & BARNES, LLP, Charlotte, North Carolina,

for Appellant. Gretchen C. F. Shappert, United States Attorney,

Adam Morris, Assistant United States Attorney, Charlotte, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*McGurk was convicted on the drug distribution and money

laundering offenses following a second trial. The jury at McGurk’s

first trial had been unable to reach a verdict on these charges.

-2-

PER CURIAM:

A jury convicted Hector McGurk of conspiracy to possess

with intent to distribute over 1000 kilograms of marijuana, in

violation of 21 U.S.C.A. §§ 841 and 846 (West 1999 & Supp. 2008),

and conspiracy to commit money laundering, in violation of 18

U.S.C.A. § 1956 (West Supp. 2008).* The district court sentenced

McGurk to life imprisonment, and McGurk timely appealed. For the

following reasons, we affirm.

McGurk first contends the district court erroneously

denied his Fed. R. Crim. P. 33 motion for a new trial. This motion

was filed nearly two years after the jury returned its verdict. A

motion for a new trial based on newly discovered evidence must be

filed within three years of the finding of guilt, and a motion for

a new trial based on any reason other than newly discovered

evidence must be filed within seven days of the finding of guilt.

Fed. R. Crim. P. 33(b)(1), (b)(2). The denial of a Rule 33 motion

is reviewed for abuse of discretion. See United States v. Smith,

451 F.3d 209, 216 (4th Cir. 2006). 

McGurk’s Rule 33 motion did not raise newly discovered

evidence. To the extent McGurk’s motion was premised on alleged

ineffective assistance of trial counsel, we have held that “a

motion for a new trial predicated on ineffective assistance of
-3-

counsel must be brought . . . within seven days of judgment

regardless of when the defendant becomes aware of the facts which

suggested to [him] that [his] attorney’s performance may have been

constitutionally inadequate.” United States v. Smith, 62 F.3d 641,

648 (4th Cir. 1995). We therefore find no abuse of discretion in

the denial of McGurk’s Rule 33 motion. 

McGurk next contends the evidence was insufficient to

support his convictions. A jury’s verdict must be upheld on appeal

if there is substantial evidence in the record to support it.

Glasser v. United States, 315 U.S. 60, 80 (1942). In determining

whether the evidence in the record is substantial, we view the

evidence in the light most favorable to the Government and inquire

whether there is evidence that a reasonable finder of fact could

accept as adequate and sufficient to establish the defendant’s

guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d

849, 862 (4th Cir. 1996) (en banc). We do not review the

credibility of the witnesses and assume the jury resolved all

contradictions in the testimony in favor of the Government. United

States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007), cert. denied,

128 S. Ct. 1917 (2008). In light of these principles, we conclude

substantial evidence supported McGurk’s convictions.

McGurk next contends the district court improperly

admitted the tape recording of a phone call between McGurk and a

co-conspirator. McGurk asserts the admission of this evidence
-4-

violated the Confrontation Clause because the agent who monitored

the phone call allegedly did not disclose his proximity to the coconspirator at McGurk’s first trial and was not available to be

cross-examined on this issue at the second trial that resulted in

McGurk’s convictions. 

Because McGurk did not object to the admission of the

recording at trial, we review for plain error. See Fed. R. Crim.

P. 52(b). McGurk must show: (1) there was error; (2) the error was

plain; and (3) the error affected his substantial rights. United

States v. Olano, 507 U.S. 725, 732-34 (1993). Even if McGurk

satisfies these conditions, we may exercise our discretion to

notice the error only “if the error seriously affect[ed] the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 736 (internal quotation marks and citation omitted). McGurk

fails to identify a testimonial statement that was not subject to

cross-examination. See Crawford v. Washington, 541 U.S. 36, 50-51

(2004). We therefore find his claim is meritless.

McGurk next contends the Government committed

prosecutorial misconduct by withholding material evidence in

violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). To obtain

relief under Brady, a defendant must show that: (1) the evidence is

favorable to the defendant; (2) the prosecution suppressed the

evidence; and (3) the suppression was material. Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). The materiality standard for
-5-

a Brady claim is not a sufficiency of the evidence test, but rather

whether “the favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine confidence

in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).

After reviewing the voluminous trial transcript in light of these

principles, we find McGurk’s prosecutorial misconduct claim fails.

McGurk next contends the district court improperly denied

his motion to dismiss the conspiracy to commit money laundering

charge for lack of proper venue. The district court found McGurk’s

motion, which was filed almost two years after trial, was untimely.

The district court’s finding was proper. See United States v.

Melia, 741 F.2d 70, 71 (4th Cir. 1984) (stating venue objections

must be made before trial when defect apparent on face of

indictment or otherwise at close of evidence).

Finally, McGurk contends the district court erred in

imposing a life sentence. After United States v. Booker, 543 U.S.

220 (2005), a district court must engage in a multi-step process at

sentencing. First, it must calculate the appropriate advisory

guidelines range. It must then consider the resulting range in

conjunction with the factors set forth in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2008), and determine an appropriate sentence.

Gall v. United States, 128 S. Ct. 586, 596-97 (2007).

Appellate review of a district court’s imposition of a

sentence is for abuse of discretion. Id. at 597; see also United
-6-

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate

court “must first ensure that the district court committed no

significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence--including an explanation

for any deviation from the Guidelines range.” Gall, 128 S. Ct. at

597.

If there are no procedural errors, the appellate court

then considers the substantive reasonableness of the sentence. Id.

“Substantive reasonableness review entails taking into account the

totality of the circumstances, including the extent of any variance

from the Guidelines range.” Pauley, 511 F.3d at 473 (internal

quotation marks and citation omitted). In making this evaluation,

this court may presume that a sentence within the Guidelines range

is reasonable. Id.

Here, the district court followed the necessary

procedural steps in sentencing McGurk. It properly calculated

McGurk’s Guidelines range to be life imprisonment and considered

that recommendation in conjunction with the § 3553(a) factors. We

therefore find the imposition of a life sentence on McGurk was

procedurally proper and substantively sound.
-7-

Accordingly, we affirm McGurk’s convictions and 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