Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 05-4914
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
ANTHONY EUGENE BROOKS, a/k/a Antonio Brooks,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (CR-05-6)
Submitted:
April 17, 2006
Decided:
July 13, 2006
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Riley H. Ross, III,

Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, John S. Davis,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
PER CURIAM:
Anthony Eugene Brooks was indicted for being a felon in
possession of ammunition, in violation of 18 U.S.C. 922(g)(1),
924(a)(2)
(2000)
(count
one);
and
being
an
unlawful
user
of
controlled substances in possession of ammunition, in violation of

18 U.S.C. 922(g)(3), 924(a)(2) (2000) (count two).
At trial,
the district court granted his Fed. R. Crim. P. 29 motion for a

judgment of acquittal on the second count.
However, the district
court denied the motion with respect to the first count, on which
the
jury
subsequently
convicted
Brooks.
The
district
court
sentenced Brooks to eighty-seven months imprisonment, at the top

of the advisory Sentencing Guidelines range.
Brooks appeals his
conviction and sentence.

First, Brooks contends that the district court erred in
denying his Rule 29 motion as it related to the first count in the
indictment. We review the district courts decision to deny a Rule
29 motion de novo.
United States v. Lentz, 383 F.3d 191, 199 (4th
Cir. 2004), cert. denied, 125 S. Ct. 1828 (2005).
Where, as here,
the motion was based on insufficient evidence, [t]he verdict of a

jury must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it.
United
States,
315
U.S.
60,
80
(1942).
[W]e
Glasser v.
have
defined
substantial evidence, in the context of a criminal action, as

that evidence which a reasonable finder of fact could accept as
- 2 -
adequate and sufficient to support a conclusion of a defendants

guilt beyond a reasonable doubt.
United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc)).
With these principles in mind, we have reviewed the
record
and
conviction.
conclude
substantial
evidence
supports
Brooks
Thus, we conclude the district court did not err in
denying the Rule 29 motion on the first count.

Second, Brooks contends the district court abused its
discretion in denying his Fed. R. Crim. P. 33 motion for a new
trial. Specifically, Brooks argues that he was prejudiced when the
district court overruled his objection to evidence that had been
previously admitted as relevant to the second count.
The district
court found that this evidence was also probative to the first
count and was not substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations
of
undue
delay,
waste
presentation of cumulative evidence.
of
time,
or
needless
Fed. R. Evid. 403.
A district court may grant a defendants motion for a new

trial if the interest of justice so requires.
33(a).
Fed. R. Crim. P.
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.
- 3 -
Wilson, 118 F.3d 228, 237 (4th Cir. 1997)), cert. denied, 124 S.
Ct. 1408 (2004), or when substantial prejudice has occurred,
United States v. Jones, 542 F.2d 186, 211 (4th Cir. 1976).
We
review the denial of a Rule 33 motion for abuse of discretion.

United States v. Adam, 70 F.3d 776, 779 (4th Cir. 1995).
Whether
evidence is more probative than prejudicial under Rule 403 requires

a determination of whether the risk that the jury will be excited
to irrational behavior is disproportionate to the probative value
of the evidence.
United States v. Tedder, 801 F.2d 1437, 1444
(4th Cir. 1986).
After thoroughly considering the issue, the
district court did not find such a risk existed.

neither arbitrary nor irrational.
Its findings were
See United States v. Simpson,
910 F.2d 154, 157-58 (4th Cir. 1990).
Therefore, we find no abuse
of discretion.
Finally, Brooks argues that his sentence is unreasonable.
After the Supreme Courts decision in United States v. Booker, 543
U.S. 220 (2005), a sentencing court is no longer bound by the range
prescribed by the Sentencing Guidelines.
401 F.3d 540, 546 (4th Cir. 2005).
United States v. Hughes,
In determining a sentence
post-Booker, however, sentencing courts are still required to

calculate and consider the guideline range prescribed thereby as
well as the factors set forth in 18 U.S.C.A. 3553(a) (West 2000
& Supp. 2005).
Id.; see also United States v. Green, 436 F.3d 449,
455-56 (4th Cir. 2006).
As stated in Hughes, we will generally
- 4 -
affirm a post-Booker sentence if it is within the statutorily

prescribed range and is reasonable.
Hughes, 401 F.3d at 546-47.
Further, while we believe that the appropriate circumstances for

imposing a sentence outside the guideline range will depend on the
facts of individual cases, we have no reason to doubt that most
sentences will continue to fall within the applicable guideline
range.
United States v. White, 405 F.3d 208, 219 (4th Cir.),
cert. denied, 126 S. Ct. 668 (2005); see also Green, 436 F.3d at
457
([A]
sentence
imposed
within
the
properly
calculated
Guidelines range . . . is presumptively reasonable. (internal

quotation marks omitted)).
Here,
Brooks
does
not
claim
the
district
court
insufficiently considered the applicable Sentencing Guidelines; in

fact,
the
district
court
enhancements
proposed
evidence
support
sentenced
in
Brooks
imprisonment.
short
shrift
in
was
below
declined
the
too
the
to
apply
presentence
weak.
The
statutory
two
sentencing
report
because
the
district
court
also
maximum
of
ten
years
However, Brooks contends the district court gave

to
its
advisory
sentencing
considerations,
particularly the directives to sentence to a term no greater than

necessary
and
to
avoid
sentencing
disparities.
We
find
the
district court considered any and all issues relevant to Brooks

sentence.
Moreover, we recently concluded, contrary to Brooks
argument,
that
3553s
admonishment
- 5 -
to
avoid
sentencing
disparities applies only to disparities between federal defendants

except in unusual circumstances not present here.
States v. Clark, 434 F.3d 684 (4th Cir. 2006).
See United
We find no
deficiency in Brooks sentence.

Accordingly, we affirm Brooks conviction 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
- 6 -

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

April 17, 2006

July 13, 2006

Before WILLIAMS, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Frank W. Dunham, Jr., Federal Public Defender, Riley H. Ross, III,

Unpublished opinions are not binding precedent in this circuit.

controlled substances in possession of ammunition, in violation of

the district court granted his Fed. R. Crim. P. 29 motion for a

However, the district

sentenced Brooks to eighty-seven months imprisonment, at the top

Brooks appeals his

conviction and sentence.

United States v. Lentz, 383 F.3d 191, 199 (4th

Cir. 2004), cert. denied, 125 S. Ct. 1828 (2005).

the motion was based on insufficient evidence, [t]he verdict of a

substantial evidence, in the context of a criminal action, as

adequate and sufficient to support a conclusion of a defendants

United States v. Newsome, 322

Thus, we conclude the district court did not err in

denying the Rule 29 motion on the first count.

presentation of cumulative evidence.

Fed. R. Evid. 403.

A district court may grant a defendants motion for a new

A district court should exercise its discretion to grant

a new trial sparingly, and . . . should do so only when the

review the denial of a Rule 33 motion for abuse of discretion.

evidence is more probative than prejudicial under Rule 403 requires

United States v. Tedder, 801 F.2d 1437, 1444

(4th Cir. 1986).

After thoroughly considering the issue, the

district court did not find such a risk existed.

Its findings were

See United States v. Simpson,

910 F.2d 154, 157-58 (4th Cir. 1990).

Therefore, we find no abuse

United States v. Hughes,

post-Booker, however, sentencing courts are still required to

Id.; see also United States v. Green, 436 F.3d 449,

455-56 (4th Cir. 2006).

As stated in Hughes, we will generally

affirm a post-Booker sentence if it is within the statutorily

Hughes, 401 F.3d at 546-47.

Further, while we believe that the appropriate circumstances for

United States v. White, 405 F.3d 208, 219 (4th Cir.),

Guidelines range . . . is presumptively reasonable. (internal

insufficiently considered the applicable Sentencing Guidelines; in

However, Brooks contends the district court gave

particularly the directives to sentence to a term no greater than

district court considered any and all issues relevant to Brooks

Moreover, we recently concluded, contrary to Brooks

disparities applies only to disparities between federal defendants

deficiency in Brooks sentence.

contentions are adequately presented in the materials before the

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