                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 court’s 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.”                Glasser v.

United   States,   315    U.S.   60,     80    (1942).    “[W]e    have    defined

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

that evidence which ‘a reasonable finder of fact could accept as


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adequate and sufficient to support a conclusion of a defendant’s

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   conclude   substantial     evidence    supports     Brooks’

conviction.    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   of    time,   or   needless

presentation of cumulative evidence.”       Fed. R. Evid. 403.

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

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


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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.    Its findings were

neither arbitrary nor irrational.       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 Court’s 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.     United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005).         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


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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       declined    to     apply    two       sentencing

enhancements          proposed      in     the    presentence       report       because     the

evidence    in    support          was    too    weak.      The    district       court      also

sentenced       Brooks          below    the    statutory       maximum    of    ten     years’

imprisonment.          However, Brooks contends the district court gave

short     shrift        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        §     3553’s       admonishment       to     avoid       sentencing


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disparities applies only to disparities between federal defendants

except in unusual circumstances not present here.                See United

States v. Clark, 434 F.3d 684 (4th Cir. 2006).                   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




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