NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Danny MYERS, Defendant-Appellant.
No. 91-5562.
United States Court of Appeals,
Fourth Circuit.
Submitted: August 21, 1992
Decided: December 30, 1992
Order on Denial of Rehearing March 11, 1993.
Appeal from the United States District Court for the District of South Carolina, at Florence.
J. Rene' Josey, ROGERS, MCBRATNEY & JOSEY, for Appellant.
E. Bart Daniel, United States Attorney, Mary Gordon Baker, Assistant United States Attorney, for Appellee.
D.S.C.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
Before HALL and WILKINS, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM:
Danny Myers appeals from a district court judgment entered pursuant to a jury verdict finding him guilty of conspiring to possess with intent to distribute and possessing with intent to distribute cocaine and "crack" cocaine, in violation of 21 U.S.C.ss 841(a)(1) and 846. We affirm Myers's conviction but vacate his sentence and remand for resentencing.
Initially, we reject Myers's contention that the district court erred by admitting into the record evidence of his prior bad acts. Fed. R. Evid. 404(b) prohibits the admission of evidence of prior bad acts to show that the actor acted in conformity therewith; however, such evidence is admissible to show "proof of motive, opportunity, intent, or absence of mistake or accident." United States v. Rawle,
The evidence was highly probative in view of the strong similarity of the prior acts to the acts charged in the indictment and the closeness in time of each set of actions. See United States v. Percy,
Myers has filed a motion requesting the court to accept his brief which supplements the brief filed by his counsel. Myers argues in his supplemental brief that the evidence was insufficient to support his conviction because the witnesses that testified against him were incredible. While we grant Myers's motion to file a supplemental brief, we reject his sufficiency of the evidence contentions made therein since an assessment of witness credibility lies within the sole province of the jury and is not subject to appellate review. See United States v. Saunders,
We note, however, that the transcript of the sentencing hearing reflects that Myers was not directly apprised by the court of his right to speak in mitigation prior to sentencing. The district court must personally invite the defendant to speak prior to sentencing under Fed. R. Crim. P. 32(a). See United States v. Miller,
Accordingly, the judgment of the district court is affirmed in part, vacated in part, and the case is remanded for further proceedings consistent with this opinion. 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 IN PART, VACATED IN PART, AND REMANDED
ORDER
Filed: March 11, 1993
The government has filed an untimely petition for rehearing accompanied by a motion for leave to file petition out of time. Appellant's court-appointed counsel has filed an answer to the petition for rehearing and appellant has filed a pro se objection to the government's motion for leave to file petition out of time.
The Court grants the government's motion for leave to file its petition out of time and denies the petition for rehearing.
Entered at the direction of Judge Hall with the concurrence of Senior Judge Sprouse, Judge Wilkins voted to grant rehearing for the reasons stated in his dissent which is attached to this order.
WILKINS, Circuit Judge, dissenting:
I would grant the petition for rehearing filed by the Government.
Myers was convicted by a jury of conspiring to possess with the intent to distribute and possessing with the intent to distribute cocaine and cocaine base in violation of 21 U.S.C.A. §§ 841(a), 846 (West 1981 & Supp. 1992). Indeed, prior to sentencing, defense counsel correctly acknowledged on the record that the 20-year mandatory minimum sentence applied and that this was the minimum sentence that Myers could receive. The district court sentenced Myers to 20 years imprisonment.
Myers, represented by counsel in his appeal, raised no sentencing issues in his formal brief. Consequently, the joint appendix did not contain the presentence report or a transcript of the sentencing hearing. Myers thereafter filed a pro se supplemental brief, arguing for the first time that his sentence should be vacated because the district court failed to address him personally at sentencing to permit him to speak on his own behalf and present evidence in mitigation of sentencing as required by Federal Rule of Criminal Procedure 32(a)(1)(C).1 The Government did not respond to this argument.
Based on these submissions and without benefit of oral argument, the panel vacated Myers' sentence and remanded for resentencing because the district court failed to address Myers personally prior to sentencing to offer him the opportunity to speak on his own behalf. United States v. Myers, No. 91-5562, slip op. at 3 (4th Cir. Dec. 30, 1992) (per curiam) (unpublished). The panel, however, was unaware that due to the application of the mandatory minimum provision of § 841(b)(1), the district court had imposed the lowest sentence for which Myers was eligible and that, consequently, any error occasioned by the failure of the district court to fully comply with Rule 32(a) was harmless beyond a reasonable doubt. In its petition for rehearing the Government brought to our attention for the first time the application of the mandatory minimum provision.
The court has previously concluded that the failure to permit a defendant to speak during sentencing is subject to a harmless error analysis. See Ashe v. North Carolina,
Notes
Although the district court failed to address Myers personally to ask if he wished to speak on his own behalf, prior to imposing sentence the court asked defense counsel whether there was anything else from the defendant. Counsel responded in the negative. It is understandable why the district court did not then address Myers personally to inquire if he had anything to say for whatever Myers might have offered could not have affected the application of the 20-year mandatory minimum sentence
In United States v. Miller,