United States v. Lowry , 116 F. App'x 446 ( 2004 )

Vacated by Supreme Court, March 28, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4856
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT EARL LOWRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
Chief District Judge. (CR-02-13-BO)
Submitted: October 1, 2004 Decided: November 22, 2004
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kelly Latham Greene, STUBBS & PERDUE, PA, New Bern, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Earl Lowry appeals his convictions and 228-month
sentence on drug and firearms offenses and the order of the
district court denying his motion for a new trial filed pursuant to
Fed. R. Crim. P. 33. Finding no error, we affirm.
Lowry first claims that the district court erred in its
calculation of relevant conduct for purposes of establishing his
base offense level under U.S. Sentencing Guidelines Manual
§ 2D1.1(c) (2002). A district court’s factual finding concerning
the amount of drugs attributable to a defendant is reviewed for
clear error. United States v. Randall, 171 F.3d 195, 210 (4th Cir.
1999). The district court’s finding was based on Lowry’s own
admissions to an investigator regarding his distribution of crack
cocaine. We conclude that this statement against interest, when
combined with other corroborating facts, established a sufficient
indicia of reliability to support the court’s finding. See United
States v. Miller, 925 F.2d 695, 699 (4th Cir. 1991) (“The
informant’s interest in obtaining leniency created a strong motive
to supply accurate information.”).
In his second claim, Lowry asserts that the district
court erred in denying his Rule 33 motion for a new trial. Lowry
claims that a form he signed while attempting to cooperate with
- 2 -
North Carolina officials is new evidence and amounts to a Brady*
violation. We review this claim for an abuse of discretion.
United States v. Huggins, 191 F.3d 532, 536 (4th Cir. 1999).
In order to receive a new trial under Rule 33 based on
newly discovered evidence, a defendant must demonstrate that:
(a) the evidence is newly discovered; (b) he has been diligent in
uncovering it; (c) it is not cumulative or impeaching; (d) it is
material to the issues involved; and (e) it would probably produce
an acquittal. See United States v. Fulcher, 250 F.3d 244, 249 (4th
Cir. 2001). Lowry cannot demonstrate that the evidence was newly
discovered because he was aware of it prior to trial.
Likewise, Lowry fails with respect to his Brady claim.
Such a violation may warrant a new trial if the prosecutor
withholds material evidence favorable to the defense, and there is
a “reasonable probability” that with the favorable evidence the
defendant would have obtained a different result at trial. See
Kyles v. Whitley, 514 U.S. 419, 432-33 (1995). Our review of the
transcript discloses no reasonable probability that Lowry would
have obtained a different result had he been provided with a copy
of the disputed form by the Government.
Lowry also claims that the district court erred by
denying his motion for an instruction on a defense of entrapment.
*
See Brady v. Maryland, 373 U.S. 83 (1963) (establishing duty
of prosecution to disclose exculpatory evidence).
- 3 -
A district court’s refusal to give an entrapment instruction is a
legal issue that we review de novo. See United States v. Phan, 121
F.3d 149, 154 (4th Cir. 1997). To be entitled to a requested jury
instruction, a defendant must establish a sufficient evidentiary
foundation to support the instruction. See United States v. Lewis,
53 F.3d 29, 33 n.8 (4th Cir. 1995). The transcript again fails to
support Lowry’s claimed position. There is simply no plausible
scenario associated with the evidence to support an entrapment
defense. Accordingly, we deny this claim.
Finally, Lowry has filed a motion to file a supplemental
brief addressing the issues raised by the Supreme Court’s recent
ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004). We grant
the motion and deem it to provide the supplemental argument
regarding the effects of Blakely. This court has considered the
applicability of Blakely to the federal sentencing guidelines and
has concluded that their application by a district court comports
with the requirements of the Sixth Amendment. See United States v.
Hammoud, ___ F.3d ___, 2004 WL 2005622, at *28 (4th Cir. Sept. 8,
2004) (No. 03-4253) (en banc); United States v. Hammoud, 378 F.3d
426 (4th Cir. 2004) (order), petition for cert. filed, ___ U.S.L.W.
___ (U.S. Aug. 6, 2004) (No. 04-193). Accordingly, we find no
error in Lowry’s sentence.
We affirm the judgment of the district court. We
dispense with oral argument because the facts and legal contentions
- 4 -
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
- 5 -