United States of America v. Valon Marcel Vailes, a/k/a V

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4414
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VALON MARCEL VAILES, a/k/a V,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00162-FDW-3)
Submitted: February 5, 2010 Decided: March 9, 2010
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. James Roos, III, LAW OFFICES OF J. JAMES ROOS, III, LLC,
Towson, Maryland, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Valon Marcel Vailes was convicted following a jury
trial of conspiracy to possess with intent to distribute more
than 1000 kilograms of marijuana, 21 U.S.C. § 846 (2006), and
possession with intent to distribute, 21 U.S.C. § 841(a)(1)
(2006), 21 U.S.C.A. § 841(b)(1)(D) (West Supp. 2009). The
district court imposed concurrent sentences of 250 months’ and
120 months’ imprisonment. Vailes’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that in his opinion there are no meritorious issues for appeal,
but questioning whether the district court erred in denying
Vailes’s motions for judgment of acquittal. Vailes was informed
of his right to file a pro se brief, but he has not done so. We
affirm.
This court reviews de novo the denial of a Fed. R.
Crim. P. 29 motion for judgment of acquittal. United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005). “The 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); see United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
Substantial evidence is “evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a

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conclusion of a defendant’s guilt beyond a reasonable doubt.”
Burgos, 94 F.3d at 862.
To establish Vailes’s guilt under 21 U.S.C. § 846, the
evidence must show that: (1) an agreement to possess and
distribute marijuana existed between two or more people; (2)
Vailes knew of the conspiracy; and (3) Vailes knowingly and
voluntarily became a part of the conspiracy. See United States
v. Kellam, 568 F.3d 125, 139 (4th Cir.), cert. denied, 130 S.
Ct. 657 (2009). The penalty statute provides that the evidence
must show that the amount involved 1000 kilograms or more of a
mixture or substance containing a detectable amount of
marijuana. 21 U.S.C. § 841(b)(1)(A)(vii) (2006).
To establish Vailes’s guilt under 21 U.S.C.
§ 841(a)(1), the evidence must show that: (1) Vailes possessed
marijuana; (2) he had knowledge that he possessed marijuana; and
(3) he intended to distribute the marijuana. See United States
v. Randall, 171 F.3d 195, 209 (4th Cir. 1999). The penalty
statute provides that the evidence must show that the amount
involved up to 50 kilograms of marijuana. 21 U.S.C.
§ 841(b)(1)(D).
After reviewing the record, we conclude that there was
sufficient evidence presented at trial from which the jury could
conclude that Vailes was guilty beyond a reasonable doubt of
conspiring to possess with the intent to distribute more than

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1000 kilograms of marijuana, and possession with the intent to
distribute up to 50 kilograms of marijuana.
We also conclude that Vailes’s sentence is reasonable.
We review a sentence for abuse of discretion. Gall v. United
States, 552 U.S. 38, 50 (2007). The first step in this review
requires us to ensure that the district court committed no
significant procedural error. United States v. Evans, 526 F.3d
155, 161 (4th Cir.), cert. denied, 129 S. Ct. 746 (2008).
Significant procedural errors include “‘failing to calculate (or
improperly calculating) the Guidelines range’” or “‘failing to
consider the § 3553(a) factors.’” United States v. Carter, 564
F.3d 325, 329 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).
We then consider the substantive reasonableness of the sentence,
taking into account the totality of the circumstances. Id.
When reviewing a sentence on appeal, we presume a sentence
within the Guideline range is substantively reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
We have reviewed the record and conclude that the
district court did not abuse its discretion in sentencing
Vailes, and that his sentence in the middle of the Guideline
range is reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.

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This court requires that counsel inform his client in writing of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client.
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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