                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0461n.06
                                   Filed: June 3, 2005

                                           No. 03-2546

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
v.                                                 )    EASTERN DISTRICT OF MICHIGAN
                                                   )
AMONT JEFFERSON,                                   )                    OPINION
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )



BEFORE:        COLE and GIBBONS, Circuit Judges, and SCHWARZER,* Senior District
               Judge

       PER CURIAM. Amont Jefferson appeals his conviction, after a jury trial, of bank robbery

under 18 U.S.C. §§ 2 and 2113(a). He also appeals the denial of his motion for a new trial and his

sentence of six years’ imprisonment. Jefferson argues that the government’s failure to disclose the

report of a witness interview violated the Supreme Court’s decision in Brady v. Maryland, 373

U.S. 83 (1963), which established that the government may not suppress material evidence that is

favorable to the accused. The district court held a hearing and determined that even if the interview

report was deliberately withheld, there was no constitutional error because the evidence would not

have affected the outcome of the case. The court therefore denied Jefferson’s motion for a new trial.


       *
         The Honorable William W Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
No. 03-2546
United States v. Jefferson

For the reasons discussed below, we affirm Jefferson’s conviction and the denial of his motion for

a new trial, but remand for resentencing.

                                        BACKGROUND

       On September 18, 2001, Jefferson, Arthur Bowlson, Robert Moore, and Marco Houston met

at the house of Brent Crowell to plan a bank robbery, which they carried out later that day at a

branch of National City Bank in St. Clair Shores, Michigan. Jefferson’s job was to enter the bank

to see how many people were inside the bank and whether the tellers were protected by bulletproof

glass. To do this, Jefferson entered the bank and pretended to be interested in opening a bank

account. The bank surveillance camera photographed Jefferson standing at the teller window, and

the teller recorded information about his inquiry. Jefferson then left the bank and described the

interior to Bowlson, who entered the bank with his face concealed and a gun in his hand and

obtained over $12,000 in cash from the tellers’ drawers. After Bowlson left the bank, he and Moore

fled a short distance and were apprehended. Jefferson and Houston escaped safely but were later

arrested.

       Jefferson was indicted for bank robbery and carrying a firearm during a crime of violence.

His first trial resulted in a not guilty verdict on the firearm charge and no verdict on the bank

robbery charge. In his second trial, he was convicted of bank robbery and sentenced to six years’

imprisonment.

       During Jefferson’s sentencing hearing, defense counsel learned that the FBI had interviewed

Crowell, whose statement contradicted some of the testimony of Moore, the principal witness

against Jefferson. Specifically, Jefferson argues that Crowell’s statement contradicted Moore’s

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No. 03-2546
United States v. Jefferson

testimony by indicating that the men arrived and left in only one car, rather than two; that the men

left and brought back breakfast from McDonald’s, rather than raiding Crowell’s refrigerator; and

that there was no gun in Crowell’s house for the men to have taken. Jefferson moved for a new trial

on the ground that the government’s failure to disclose the information regarding the Crowell

interview in response to discovery requests was a Brady violation. After a hearing, the trial court

held that the evidence would not have affected the outcome of the case and denied the motion. The

court thereafter sentenced Jefferson to six years’ imprisonment. Jefferson timely appealed.



                                   STANDARD OF REVIEW

       “The decision whether to grant or to deny a motion for a new trial rests within the district

court’s sound discretion.” United States v. Braggs, 23 F.3d 1047, 1050 (6th Cir. 1994) (citing

United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991)). “[T]his court reviews the denial of a

motion for a new trial based on newly discovered Brady evidence for an abuse of discretion.”

United States v. Ross, 245 F.3d 577, 584 (6th Cir. 2001) (citation omitted).

                                          DISCUSSION

I.     BRADY VIOLATION

       The Supreme Court recently summarized the three components of a “true” Brady violation,

stating that “[t]he evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.

263, 281-82 (1999). Demonstrating prejudice requires the defendant to show that the suppressed

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United States v. Jefferson

favorable evidence at issue is material. Id. at 282. Favorable evidence is material for Brady

purposes “if there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” Id. at 280; Kyles v. Whitley, 514 U.S. 419,

433-34 (1995); Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir. 2003) (citing United States v.

Bagley, 473 U.S. 667, 682 (1985)). In this case, the evidence is not material nor favorable to

Jefferson and, in any event, was not suppressed by the government.

       A.      The Evidence Is Not Material

       Jefferson claims that because Crowell’s testimony contradicts some of Moore’s testimony,

the withholding of the interview report constituted a Brady violation. Specifically, Jefferson argues

that in light of Crowell’s statement, the jury could have inferred that Moore was lying about

significant events leading up to the robbery and could have concluded that he was not credible

regarding the information he provided about Jefferson’s involvement in the robbery.

       While Crowell may have contradicted Moore on some points–namely, what the defendants

ate while they were at his house, which particular cars they used, and whether there was a gun in the

house–Crowell’s testimony would have contradicted Jefferson’s defense theory in more significant

respects. Jefferson testified that he did not know Crowell or Bowlson and that he was not with

Moore or Bowlson on the day of the robbery. Crowell’s testimony that Jefferson was in the

company of the other defendants on the day of the robbery would only have enhanced the

government’s case. The type of cars at Crowell’s house, what the men ate for breakfast, and whether

there was a gun at Crowell’s house have little relevance to the case against Jefferson.

       Jefferson was photographed in the bank less than twenty minutes before Bowlson robbed it.

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No. 03-2546
United States v. Jefferson

Jefferson’s girlfriend verified that the man in the surveillance photo was Jefferson. He gave a false

name and pretended to be interested in opening an account. The Sable in which Bowlson made his

getaway was rented to Jefferson’s girlfriend. Additionally, Moore was extensively cross-examined

about his prior convictions, the fact that he lied to his common-law wife about his girlfriend, the

details of his cooperation agreement with the government, and even whether he was lying about

where the group had breakfast that day. As the district court noted at the sentencing hearing, the

defense did a good job of impeaching Moore at the trial. Details about cars used or where the men

ate breakfast would not have changed the outcome of the jury verdict, and whether there was a

firearm at Crowell’s house is irrelevant because Jefferson was acquitted of the firearm charge in his

first trial.

         In light of the great weight of evidence against Jefferson that would result from Crowell’s

testimony, the slight impeachment value of the testimony, and the fact that Moore had already been

extensively cross-examined with impeaching evidence, the district court did not abuse its discretion

in holding that the outcome would not have been different if the report of Crowell’s testimony had

been known to the defense.

         B.     The Evidence Was Not Suppressed

         In any case, there was no Brady violation because the information that Crowell provided to

the FBI in his interview was not suppressed. Brady holds that the prosecution may not suppress

favorable material evidence. 373 U.S. at 87. But evidence is not “suppressed” when it is readily

available to the defendant from other sources. United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir.

1994); see also United States v. Corrado, 227 F.3d 528, 538 (6th Cir. 2000) (stating that evidence

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No. 03-2546
United States v. Jefferson

need not be disclosed if the defense could have located and interviewed witnesses through a

reasonable effort). We have held that no Brady violation exists “where a defendant knew or should

have known the essential facts permitting him to take advantage of any exculpatory information.”

United States v. Cottage, 307 F.3d 494, 499-500 (6th Cir. 2002) (quoting United States v. Clark, 928

F.2d 733, 738 (6th Cir. 1991) (internal citations omitted)).1

       In this case, Crowell was listed as a government witness in the first trial, although he never

testified. Moreover, Jefferson knew long before the trial that the government’s theory included the

facts surrounding the meeting of the four alleged bank robbers at Crowell’s house on the morning

of the robbery. Moore testified at Jefferson’s first trial that Jefferson was with the other three

robbers at Crowell’s house on the morning of the robbery. Crowell’s potential testimony regarding

the events of that morning would seem to be of great interest to the defense, yet there is no

indication that defense counsel pursued this evidence. Furthermore, there is nothing to suggest that

Crowell was not accessible for questioning by defense counsel. Crowell was not in custody or

otherwise in the control of the government. And there is no indication that Crowell refused to speak

with defense counsel. See Strickler, 527 U.S. at 285 & n.27 (holding that records and notes of

interviews were suppressed because the witness refused to speak to defense counsel before trial);




       1
         In Mullins, this court held that the FBI did not violate due process under Brady by failing
to disclose a summary of a witness interview conducted by the FBI because the defendant knew, or
was aware of, the information that the witness provided to the FBI. 22 F.3d at 1371-72. Similarly,
here, Jefferson could have located and interviewed Crowell with a reasonable effort, thus permitting
him to take advantage of any exculpatory information Crowell might have to offer. Therefore, the
evidence at issue here was not suppressed. See Cottage, 307 F.3d at 499-500; Corrado, 227 F.3d
at 538.

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No. 03-2546
United States v. Jefferson

United States v. Frost, 125 F.3d 346, 381 (6th Cir. 1997) (finding that the government had

suppressed part of the statement of a witness who refused to be interviewed by the defense).

Nothing prevented defense counsel from calling Crowell as a witness or interviewing him to see

whether he would contradict Moore’s testimony regarding the events at his house. Jefferson’s

counsel did not need to read a report of an FBI interview with Crowell to discover whether Crowell

could provide any exculpatory evidence.

       Because the interview report was neither material nor suppressed, there was no

Brady violation.

II.    SENTENCING

       Jefferson originally challenged his sentence on the basis that the federal Sentencing

Guidelines are unconstitutional in their entirety or, alternatively, that he was erroneously assessed

two additional points on his offense level based on facts found by the sentencing judge rather than

by the jury, in violation of his Sixth Amendment rights.2 We need not reach the issue of whether

there was a Sixth Amendment violation because United States v. Barnett, 398 F.3d 516 (6th Cir.

2005), dictates that the remedial interpretation of the Sentencing Guidelines set forth in United

States v. Booker, 125 S. Ct. 738 (2005), must be applied to all cases on direct review, even to those




       2
         Specifically, the district court found that Jefferson committed perjury at trial and therefore
added an obstruction of justice enhancement. At trial, Jefferson testified that he did not participate
in the robbery, that he did not go to Moore’s house on the day of the robbery, that he did not even
know who Crowell was, that he went to the bank only to open an account for Houston, and that he
did not even know the robbery had occurred until two weeks later. The court determined, as the
government now argues, that the jury’s verdict established that Jefferson committed perjury because
the jury could not have believed these statements without acquitting Jefferson.

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No. 03-2546
United States v. Jefferson

defendants “who had been sentenced under the mandatory Guidelines without suffering a Sixth

Amendment violation.” Barnett, 398 F.3d at 524 (citing Booker, 125 S. Ct. at 765). However, a

defendant must raise this argument on appeal to obtain relief. United States v. Oliver, 397 F.3d 369,

377 n.1 (6th Cir. 2005) (noting that supplemental authority letters submitted prior to and subsequent

to oral argument were sufficient to raise Booker issue on appeal).

       In his brief, Jefferson based his argument regarding his sentence on Blakely v. Washington,

124 S. Ct. 2531 (2004) (holding that judges may not enhance sentences based on facts not admitted

by defendant or found by a jury), contending that his Sixth Amendment rights were violated.

However, prior to oral argument, Jefferson submitted a supplemental citation of authority on the

sentencing issue, citing Booker, 125 S. Ct. 738. Jefferson now argues that his sentence was imposed

in error because the district court sentenced him under the belief that the Guidelines were

mandatory. Jefferson’s supplemental citation of authority was sufficient to raise on appeal

Jefferson’s argument that his sentence violated Booker. See Oliver, 397 F.3d at 377 n.1. However,

because Jefferson did not raise this issue at sentencing, we review for plain error. Id. at 377.

       The district court erred in treating the Guidelines as mandatory. Barnett, 398 F.3d at 525.

The error was plain because Booker effectuated a clear and obvious change in the law by making

the Guidelines advisory. Id. at 526. Prejudice may be assumed because the court would have been

free to impose a lower sentence under an advisory Guidelines regime. Id. at 527-28. In this case,

prejudice is also apparent because in adding points due to obstruction of justice, the court stated:

       [A]s a matter of philosophy or personal belief, I might come out with a different
       result than the U.S. Supreme Court did in terms of allowing more points for
       exercising the constitutional right to testify on your own behalf. But where – I am

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No. 03-2546
United States v. Jefferson

       basically under the supervision of the Supreme Court, I have to follow their
       precedent, and then the only question becomes is that substantial evidence is in
       support of finding what the guidelines calls an obstruction of justice based on
       perjury, and I’m making that finding.

Finally, exercising discretion to correct the plain error is appropriate in this case where it is

impossible to tell if the judge would have given the same sentence under the new regime. Id. at 529-

30. “We would be usurping the discretionary power granted to the district courts by Booker if we

were to assume that the district court would have given [the defendant] the same sentence post-

Booker.” Oliver, 397 F.3d at 380 n.3.

       We therefore remand this case in light of Booker for resentencing under an advisory

Guidelines regime. Barnett, 398 F.3d at 531; see also United States v. Howard, 2005 WL 612121

at *2 (6th Cir. Mar. 17, 2005) (remanding for resentencing under Booker and Barnett absent a Sixth

Amendment violation).

       REMANDED for resentencing.




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