Case Information
*1 Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gаry R. Hershner, Richmond, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Brian Lee Whisler, Olivia N. Hawkins, Assistant United States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
PER CURIAM:
Dwayne Ferguson appeals his conviction and 765-month prison sentence for conspiracy to distribute heroin and cocaine base in violation of 21 U.S.C. § 846 (2000), possession with intent to distribute heroin and cocаine base in violation of 21 U.S.C. § 841(a)(1) (2000), maintaining a place for distribution of controlled substances in violation of 21 U.S.C. § 856 (2000), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (2000). Finding no reversible error, we affirm.
Ferguson first challenges the sufficiency of the evidence for his conviction. In reviewing a sufficiency challenge, “[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable tо the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). This court has defined “substantial evidence,” in the context of a criminal action, as that evidеnce which “a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of а defendant’s guilt beyond a reasonable doubt.” United States v. Burgos , 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
The Government presented sufficient evidence to prove that Ferguson directed the distribution of large quantities of cocaine and heroin. The Government established that Ferguson was *3 instrumental in obtaining and maintaining аn apartment and a house in order to store and distribute drugs. Ferguson knew of the firearms possessed by members of the conspiracy, including four found by thе police at the house. The jury reasonably accepted as sufficient the evidence to support Ferguson’s conviction, and wе have no authority to reweigh the evidence or disregard the jury’s determination as to the credibility of the witnesses.
Ferguson next claims that the district court abused its
discretion when it denied his motion for a mistrial. The decision
whether to grant a motion for a mistrial is left to the broad
discretion of the triаl court. United States v. Dorlouis, 107 F.3d
248, 257 (4th Cir. 1997). During the Government’s questioning of
a police detective, the Government asked when the police began
focusing their investigation on Ferguson. While the district court
sustained Ferguson’s objection and instructed the jury to disregard
the question, the court denied Ferguson’s motiоn for a mistrial.
The district court did not abuse its discretion because Ferguson
failed to establish that the jury was prejudicially influenced by
the Government’s question. See United States v. Seeright, 978 F.2d
842, 849 (4th Cir. 1992). Any prejudice suffered by Ferguson was
cured by the district court’s limiting instructions. See United
States v. Francisco,
Ferguson next clаims that the district court abused its
discretion when it denied his motion for a continuance in order to
*4
secure the testimony of Shirley Elliott. A district court’s
refusal to grant a continuance is reviewed for abuse of discretion.
Morris v. Slappy, 461 U.S. 1, 11-12 (1983). Ferguson must show
that the testimony sought was relevant and that he exercised due
diligence. United States v. Clinger,
Roderick Parker lived at a halfway house before he joined the drug conspiracy and testified that when Ferguson visited him he did not check in or sign a visitor’s log. Elliott allegedly would have testified that the policy of the halfway house was to have every visitor check in and sign the visitors log and Ferguson did not. The district court did not abuse its discretion because Ferguson failed to establish that Elliott’s testimony was relеvant. Elliott’s testimony would have proven Ferguson’s name was not in the visitor’s log, but could not prove that Ferguson did not visit Parker. Regardless, the issue of whethеr or not Ferguson visited Parker was not worthy of a delay in the trial to secure Elliott’s testimony, especially considering that Ferguson had time to subpоena Elliott before the end of the trial, but did not do so. The district court did not err in denying Ferguson’s motion.
Ferguson also claims he was denied a fair trial due to
comments made by the district court about witnesses and evidence.
A new trial is required only if the court’s conduct “whether in
commenting or in interrogating witnesses during trial reaches such
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a level of prejudice that it denied any or all the appellants a
fair, as distinguished from a perfect, triаl.” United States v.
Parodi,
Ferguson also claims that the district court abused its
discretion when it allowed a Drug Enforcement Administration agent
to testify about the local drug trade. See Kumho Tire Co. v.
Carmichael,
Ferguson next claims the district court erred when it denied his motion for a new trial. Pursuant to Rule 33 of the Federal Rules of Criminal Prоcedure, 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). 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). Ferguson claims that *6 Elliott’s testimony at a post-trial motion hearing constituted new evidence worthy of a new trial. This evidence was not new evidence as Ferguson was aware of it and sought to enter the evidence during the trial but failed bеcause he did not use due diligence to secure Elliott’s testimony. In addition, the evidence was not newly discovered evidence because it was merely impeaching evidence. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). Ferguson failed to establish any grounds for a new trial and the district court did not abuse its discretion.
Ferguson’s final challenge is to the reasonableness of
his sentence. He initially claims that his sentence was
unreasonable beсause it was twice the sentencing guideline range.
Because he failed to raise this claim below, we review it for plain
error. United States v. Hughеs,
Accordingly, we affirm Ferguson’s 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