                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-4551


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RONALD ST. PHARD,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00866-RBH-2)


Submitted:   May 27, 2010                   Decided:   June 17, 2010


Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Carrie A. Fisher, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                   Ronald     St.    Phard     was     indicted,     along      with    three

co-defendants,              and   charged    with      conspiracy        to   possess     with

intent to distribute heroin, in violation of 21 U.S.C. § 846

(2006) (“Count One”) and possession with intent to distribute

heroin, in violation of 21 U.S.C. § 841 (2006) (“Count Two”).

Following           a     jury      trial    of       St.   Phard     and       co-defendant

Kastler Cherisme, the men were convicted of both counts in the

indictment.             Thereafter, St. Phard filed a Fed. R. Crim. P. 33

motion for a new trial, arguing that the Government had used his

post-Miranda * silence against him, in violation of Doyle v. Ohio,

426 U.S. 610 (1975).                   The district court denied St. Phard’s

motion and subsequently sentenced St. Phard to forty-one months

of imprisonment on Counts One and Two.                           St. Phard timely noted

his appeal.

                   On appeal, St. Phard argues that the district court

erred in denying his Rule 33 motion.                        We conclude the district

court        did    not     abuse    its    discretion      in    denying     the   Rule    33

motion.        See United States v. Fulcher, 250 F.3d 244, 249 (4th

Cir.        2001)    (providing       review      standard).        To    the    extent    the

prosecution committed Doyle error, we find that any error was

harmless.           See Williams v. Zahradnick, 632 F.2d 353, 360-62 (4th

        *
            Miranda v. Arizona, 384 U.S. 436 (1966).



                                                  2
Cir.     1980)   (stating   five-factor   test   to   determine   if

prosecutor’s comments constitute reversible error).

            Accordingly, we affirm the judgment of the district

court.    We dispense with oral argument as the facts and legal

contentions are adequately presented in the materials on appeal

and argument would not aid the decisional process.

                                                           AFFIRMED




                                  3
