United States v. Cody , 241 F. App'x 111 ( 2007 )

Vacated by Supreme Court, January 14, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5220
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY LEE CODY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:02-cr-00033-4)
Submitted: June 29, 2007 Decided: July 12, 2007
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter Adolf, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Lee Cody appeals the district court’s order denying
his motion for a new trial and imposing a 210-month sentence after
remand. A jury found Cody guilty of conspiracy to possess with
intent to distribute at least 500 grams of a mixture and substance
containing a detectable amount of methamphetamine. Cody argues
that the district court erred in denying Cody’s motion for a new
trial based on newly discovered evidence that a Government witness
had received lenient treatment in exchange for her testimony, which
was not disclosed at trial. He challenges his sentence, contending
that the district court plainly erred in increasing his sentence
above factors found by the jury, in violation of the Fifth and
Sixth Amendment, and that his sentence is unreasonable because
Cody’s co-defendants received lower sentences for the same offense,
and the burden on Cody’s family due to his imprisonment will be
substantial. Finding no error, we affirm.
On August 31, 2006, before the district court resentenced
him, Cody filed a motion for new trial pursuant to Fed. R. Crim. P.
33. Prior to filing the motion, Cody’s counsel obtained a letter
to Government witness Kimberly Palmer from her attorney in a state
methamphetamine possession case. The letter was written the day of
Palmer’s testimony and states “I was told by [an investigating
officer] that based on your cooperation the charges in all
likelihood would be dismissed.” Cody also provided the court with
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a written declaration made by Palmer on August 29, 2006, stating
that Pennell had promised her that the charges against her would be
dismissed in exchange for her testimony against Cody. At trial,
Palmer testified that she had not received a promise of leniency in
exchange for her testimony.
Pursuant to Rule 33 of the Federal Rules of Criminal
Procedure, 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). A district court “‘should exercise its discretion to
grant a new trial sparingly,’ and . . . should do so ‘only when the
evidence weighs heavily against the verdict.’” United States v.
Perry, 335 F.3d 316, 320 (4th Cir. 2003) (quoting United States v.
Wilson, 118 F.3d 228, 237 (4th Cir. 1997) (internal quotation marks
omitted)). We review the denial of a Rule 33 motion for abuse of
discretion. United States v. Adam, 70 F.3d 776, 779 (4th Cir.
1995).
In this Circuit, a motion for new trial based on newly
discovered evidence should be granted only if five elements are
established:
(1) the evidence relied on is, “in fact, newly
discovered”; (2) there are facts “alleged from
which the court may infer due diligence on the
part of the movant”; (3) “the evidence relied
upon [is] not merely cumulative or
impeaching”; (4) “the evidence [is] material
to the issues involved”; and (5) the evidence
is of such a nature that it would “probably
result in [an] acquittal at a new trial.”
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United States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000) (quoting
United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989)). A
court must find that all elements are present before granting such
a motion. Chavis, 880 F.2d at 793.
Both Cody and the Government analyzed Cody’s claim about
Palmer’s false testimony utilizing the five factor test. The court
also analyzed the motion under the five factor test. It denied the
motion because at least the last three factors of the test were not
met. The court found “the evidence is primarily impeaching; it’s
not material to the issues in the sense of conspiracy – direct
conspiracy involvement; and it would not probably result in an
acquittal by the preponderance of the evidence.” (S.J.A. 194).
On appeal, both parties analyze the claim in the context
of a due process violation under Giglio v. United States, 405 U.S.
150 (1972). The question of whether a defendant’s Fifth Amendment
due process rights were violated by the failure to disclose a
promise of leniency made to a Government witness in exchange for
her testimony is reviewed de novo. Foster v. Ward, 182 F.3d 1177,
1192 (10th Cir. 1999). Due process is implicated if the
prosecution solicited testimony it knew to be false or simply
allowed such testimony to pass uncorrected. See Giglio, 405 U.S.
at 153 (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). A
defendant’s constitutional rights are violated “[w]hen the
‘reliability of a given witness may well be determinative of guilt
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or innocence.’” Id. at 154. The knowing use of false evidence or
perjured testimony constitutes a due process violation when there
is “any reasonable likelihood that the false testimony could have
affected the judgment of the jury.” United States v. Agurs, 427
U.S. 97, 103 (1976). A “reasonable probability” of a different
result is shown when the government's act “undermines confidence in
the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434
(1995); see United States v. Kelly, 35 F.3d 929, 933 (4th Cir.
1994).
Although Cody argued in his motion for a new trial that
the Government’s failure to disclose the promise of leniency
allegedly made to Palmer violated Giglio, his argument and analysis
focused on the five factor test for newly discovered evidence.
Cody did not object to court’s use of the five factor test,
therefore we review Cody’s claim that the district court erred in
denying his motion for a new trial for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005); United
States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002). Under the
plain error standard, Cody must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993). When these
conditions are satisfied, this court may exercise its discretion to
notice the error only if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
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Id. at 736 (internal quotation marks omitted). The burden of
showing plain error is on the defendant. United States v.
Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001).
On appeal, Cody briefly asserts that the district court
applied the wrong standard to the alleged Giglio violation.
Specifically, Cody states that in addition to applying the wrong
standard, the court failed “to address whether there was a
reasonable likelihood that Palmer’s false testimony could have
affected the judgment of the jury.”
Under the Giglio analysis, there is a due process
violation if there is a “reasonable likelihood” that the
withholding of the alleged promise of leniency could have affected
the verdict. Under the five factor test, the newly discovered
evidence must be of such a nature that it would “probably result in
[an] acquittal at a new trial.” Lofton, 233 F.3d at 318. The
district court held in denying the motion that the evidence of
alleged false testimony “would not probably result in an acquittal
by the preponderance of the evidence.” We conclude that the
district court’s finding that the evidence of false testimony
regarding leniency would likely not result in an acquittal is a
sufficient finding to support that there was not a reasonable
likelihood that the withholding of the promise of leniency could
have affected the verdict under Giglio.
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Cody argues that there is a reasonable likelihood that
Palmer’s false testimony could have affected the judgment of the
jury because the other Government witnesses were drug dealers
lacking in credibility and some had cooperation agreements with the
Government. He contends that the jury may have discounted all
other witness testimony and convicted him based on Palmer’s
testimony alone. After reviewing the entirety of the record, we
find that the evidence of guilt on the conspiracy to distribute
methamphetamine count was overwhelming and Palmer’s testimony was
relatively minor and cumulative. Therefore, Cody cannot
demonstrate prejudice. We find particularly persuasive that the
jury found a drug quantity of over 500 grams of methamphetamine.
Palmer’s testimony was only about personal use amounts, therefore
her testimony alone was insufficient to sustain the jury’s verdict.
We therefore conclude that the district court did not plainly err
in using the five factor test and denying Cody’s motion for a new
trial.
Next, Cody argues that the district court violated his
Fifth and Sixth Amendment rights by sentencing him relying on this
Court’s post-Booker law, which he maintains created a de facto
mandatory sentencing guidelines scheme in violation of the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005).
Cody contends that a presumptive standard of reasonableness for a
sentence within the Guidelines range creates de facto mandatory
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sentencing guidelines. The Supreme Court has recently addressed
this issue in Rita v. United States, ___ S. Ct. ___, 2007 WL
1772146 (U.S. June 21, 2007) (No. 06-5754). The Court held that
appellate courts may apply a presumption of reasonableness to a
properly calculated Sentencing Guidelines range, and that there is
no Sixth Amendment violation from application of a presumption of
reasonableness. Id. at *6-*9.
Cody argues that his sentence is unreasonable because the
district court refused to grant a downward variance from the
Sentencing Guidelines range. Cody received a sentence of 210
months of imprisonment, at the lowest end of the Guidelines range
of 210 to 262 months. Cody contends that he should have received
a downward variance based on an alleged sentencing disparity
between his sentence and that of his co-defendants, and the
hardship his family will endure as a result of a longer term of
imprisonment. This court will affirm the sentence imposed by the
district court as long as it is within the statutorily prescribed
range and reasonable. United States v. Hughes, 401 F.3d 540 (4th
Cir. 2005). Although the Guidelines are no longer mandatory, they
must still be consulted and taken into account at sentencing.
Booker, 543 U.S. at 264. In sentencing a defendant, the district
court must: (1) properly calculate the Guidelines range;
(2) determine whether a sentence within that range serves the
factors under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007);
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(3) implement mandatory statutory limitations; and (4) explain its
reasons for selecting the sentence, especially a sentence outside
the range. United States v. Green, 436 F.3d 449, 455-56 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). An error of law or
fact can render a sentence unreasonable. Id. at 456. In
considering whether the sentence is reasonable, this court reviews
a district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Hampton, 441 F.3d 284, 287
(4th Cir. 2006).
“A district court’s reasons for not applying the properly
calculated Guideline range must be based on the factors listed in
§ 3553(a).” Green, 436 F.3d at 456. A sentence within a properly
calculated Guidelines range is presumptively reasonable. Id. at
457. This presumption can only be rebutted by showing the sentence
is unreasonable when measured against the § 3553(a) factors.
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006),
pet. for cert. filed, __ U.S.L.W. __ (July 21, 2006) (No. 06-5439).
Although Cody argues that his sentence represents a
disparity between his sentence and the lower sentences received by
a majority of his co-defendants, the record indicates that he was
not similarly situated such that his sentence was not reasonable
based on this factor. Further, Cody’s family hardship
circumstances, while regrettable, cannot be considered
extraordinary to warrant a downward departure or variance. We
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therefore find that Cody’s sentence is reasonable. See Green, 436
F.3d at 456.
Accordingly, we affirm. 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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