                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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)

                                              4
(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)

                                               5
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



                                                 6
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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