                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-4568


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

VINCENT ANTA MYERS,

                 Defendant - Appellant.



                             No. 11-4583


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

VINCENT MYERS,

                 Defendant - Appellant.



Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington.   Robert C. Chambers,
District Judge. (3:10-cr-00093-1; 3:01-cr-00099-1)


Submitted:   January 18, 2012              Decided:   February 14, 2012


Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,
for Appellant.    R. Booth Goodwin II, United States Attorney,
Joseph F. Adams, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

                 In these consolidated appeals, Vincent Myers appeals

his    conviction        and     forty-one-month              sentence    on        federal     drug

charges         (No.   11-4568);     and   the       revocation          of    his    supervised

release from a prior federal sentence, and resulting thirty-six-

month sentence (No. 11-4583).                       Because Myers’ brief raises no

challenges to the supervised release revocation or sentence, he

has abandoned any such claims.                  See United States v. Brooks, 524

F.3d 549, 556 n.11 (4th Cir. 2008).                             We therefore affirm the

district         court’s     judgment      in       No.       11-4583,        and    proceed      to

consideration of the claims raised in No. 11-4568.

                 A jury convicted Myers of two counts of distributing

oxycodone, in violation of 21 U.S.C. § 841(a)(1) (2006),* and the

district court imposed concurrent forty-one-month sentences of

imprisonment.              The      charges     stemmed          from         controlled        buys

conducted by police in West Virginia.                          Myers challenges: (1) the

district court’s denial of his Fed. R. Crim. P. 29 motion for a

judgment of acquittal, (2) the district court’s denial of his

Fed.       R.   Crim.   P.     33   motion      for       a    new   trial,         and   (3)    the

propriety of the sentence.              We affirm.

                 We review de novo a district court’s decision to deny

a Rule 29 motion for a judgment of acquittal.                                 United States v.

       *
           The jury acquitted Myers of a third count.


                                                3
Hickman, 626 F.3d 756, 762-63 (4th Cir. 2010), cert. denied, 132

S. Ct. 469 (2011).       Where such a motion alleges insufficiency of

the evidence, we must sustain the jury’s verdict if, viewing the

evidence in the light most favorable to the government, “any

rational trier of fact could have found the essential elements

of    the   crime   beyond    a   reasonable      doubt.”      United    States   v.

Green, 599 F.3d 360, 367 (4th Cir.) (internal quotation marks

omitted), cert. denied, 131 S. Ct. 271, 340 (2010).                     Because the

credibility of witnesses is properly assessed by the jury, we

may not make our “own credibility determinations but must assume

that the jury resolved all contradictions in testimony in favor

of the Government.”          United States v. Penniegraft, 641 F.3d 566,

572    (4th    Cir.)    (internal      quotation       marks    and      alteration

omitted), cert. denied, 132 S. Ct. 564 (2011).

              To convict Myers of violating 21 U.S.C. § 841(a)(1),

the Government was required to prove that (1) he knowingly or

intentionally distributed oxycodone, and (2) he knew that the

drug “was a controlled substance under the law.”                   United States

v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005) (internal quotation

marks omitted).

              Two law enforcement officers and an informant offered

substantially similar accounts of the controlled buys supporting

the     charges     against       Myers,       with   the   informant       stating

unequivocally that he purchased all of the oxycodone in question

                                           4
from Myers.     These accounts were supported, at least in part, by

the recordings captured by a concealed device carried by the

informant    during   each     controlled         buy.       Additionally,      Myers

indicated     his   awareness    of      the      fact    that     oxycodone    is     a

prescription drug.

            Moreover, the fact that the jury acquitted Myers of

one count does not undermine the validity of his convictions on

the   remaining     counts.       See        Green,       599    F.3d    at    368-69.

Accordingly, we find no error in the district court’s denial of

Myers’ Rule 29 motion.

            Next, we conclude that the district court did not err

in denying Myers’ Fed. R. Crim. P. 33 motion for new trial.                           We

review such a ruling for abuse of discretion.                      United States v.

Lighty, 616 F.3d 321, 374 (4th Cir. 2010).                  Myers asserts that a

new trial was appropriate due to the bias of the informant and

the fact that the recording of each controlled buy was obtained

in violation of the West Virginia Constitution.                         See State v.

Mullens, 650 S.E.2d 169, 173-78, 191 (W. Va. 2007).

            Regarding    the     recordings,             federal    statutory        and

constitutional law permit law enforcement officials to place an

electronic    surveillance      device       on   a   consenting     informant       for

purposes of recording communications with third-party suspects

without a warrant or other judicial authorization.                         18 U.S.C.

§ 2511(2)(c) (2006); United States v. White, 401 U.S. 745, 749-

                                         5
52 (1971) (plurality opinion).                    Accordingly,        as the district

court    determined,        the   admission       of    the    recordings       at     Myers’

trial was proper and did not warrant a new trial.                               See United

States v. Van Metre, 150 F.3d 339, 347 (4th Cir. 1998).

             The     same    is    true     for        the    alleged      bias      of     the

informant.     “A jury verdict is not to be overturned except in

the rare circumstance when the evidence weighs heavily against

it.”     United States v. Smith, 451 F.3d 209, 216-17 (4th Cir.

2006)    (internal        quotation        marks        omitted).            Here,        audio

recordings      and       the     testimony         of        two     police      officers

substantially        corroborated         the     informant’s         account        of     the

controlled buys.          Accordingly, we find no abuse of discretion in

the district court’s denial of Myers’ Rule 33 motion.

             Finally, we reject Myers’ challenge to the substantive

reasonableness       of     his   sentence.            We    review    a   sentence         for

reasonableness,        applying       a    “deferential             abuse-of-discretion

standard.”     Gall v. United States, 552 U.S. 38, 41 (2007).                                In

considering        substantive      reasonableness,             we    must      take       into

account the “totality of the circumstances.”                              Id.     When, as

here,    a   sentence       is    within    a     properly         determined     advisory

Guidelines     range,        we     presume        that       it     is    substantively

reasonable.        United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007).



                                            6
              Myers claims that the district court erred in refusing

to reduce his sentence based on the fact that he previously

served a sentence for a federal crack cocaine offense, imposed

before the sentencing reforms effected by the Fair Sentencing

Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372.                   Furthermore,

Myers suggests that the district court should have reduced his

sentence      based     on     the    informant’s   admittedly      inconsistent

statements         regarding    the    total   quantity      of   oxycodone     he

purchased from Myers.

              We     conclude these arguments are not sufficient to

rebut   the    presumption       of   reasonableness    we   accord    to    Myers’

within-Guidelines sentence.             The district court, upon assessing

the informant’s evidence concerning drug quantity, attributed to

Myers a relatively conservative amount that is justified by the

record.       Further, the court made a thorough assessment of the

facts and § 3553(a) factors in announcing a sentence at the top

of   the   applicable        Guidelines    range.      Therefore,     this   claim

warrants no relief.

              We affirm Myers’ conviction and sentence in No. 11-

4568, and the revocation of supervised release and sentence in

No. 11-4583.         We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials




                                          7
before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                                    AFFIRMED




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