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                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, 

, 320 (4th Cir. 2003) (quoting United States v.

Wilson, 

, 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, 

, 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, 

, 318 (4th Cir. 2000) (quoting

United States v. Chavis, 

, 793 (4th Cir. 1989)).                A

court must find that all elements are present before granting such

a motion.      

.

            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, 

(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, 

,

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 

(citing Napue v. Illinois, 

, 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.’”    

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, 

, 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, 

, 434

(1995); see United States v. Kelly, 

, 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, 

, 547 (4th Cir. 2005); United

States v. Martinez, 

, 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, 

, 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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quotation marks omitted).                    The burden of

showing   plain     error   is    on   the   defendant.      United     States       v.

Strickland, 

, 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.”              

.            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, 

(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. ___, 

(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.       

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, 

(4th

Cir. 2005).       Although the Guidelines are no longer mandatory, they

must still be consulted and taken into account at sentencing.

.       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, 

, 455-56 (4th

Cir.), cert. denied, 

(2006).              An error of law or

fact    can   render   a   sentence   unreasonable.       

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, 

, 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).”     

.       A sentence within a properly

calculated Guidelines range is presumptively reasonable.                  

presumption can only be rebutted by showing the sentence

is unreasonable when measured against the § 3553(a) factors.

United States v. Montes-Pineda, 

, 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 

.

          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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