                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             January 24, 2008
                             No. 06-16372                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 06-20207-CR-PAS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SHANNON DAWSON,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________


                            (January 24, 2008)


Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Shannon Dawson appeals his convictions and sentences for possession with

intent to distribute crack cocaine, powder cocaine, and marijuana, in violation of

21 U.S.C. § 841(a)(1), possession of a firearm during a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). Dawson raises two issues on appeal.

First, he asserts the district court erred by denying his motion for a new trial under

Federal Rule of Criminal Procedure 33(b) based on the newly discovered

testimony of a witness who did not appear at trial. Second, he contends that, based

on the district court’s expressed disagreement with the Sentencing Guidelines

100:1 crack/powder cocaine ratio, the court gave undue weight to the Guidelines

when imposing his 420-month sentence, at the bottom of the applicable Guidelines

range. We affirm Dawson’s convictions, but vacate and remand for resentencing

based on the Supreme Court’s recent decision in Kimbrough v. United States, __

U.S. __, 128 S. Ct. 558 (2007).

                                  I. BACKGROUND

A. Trial

      Officer Jose Garcia testified that on July 30, 2005, he and another officer

were conducting surveillance and observed two individuals dealing what Garcia

believed to be drugs. Once Garcia established a pattern consistent with drug sales,



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he contacted other officers off-site and gave them the identifying information of

the buyers so they could be arrested. Garcia then decided to have the other officers

arrest the two sellers. Garcia, along with Officers Kevin Thelwell and Ava Heiden,

all testified that, upon observing the arrest of one of the sellers, they observed the

other individual, later identified as Shannon Dawson, flee. All three officers

testified that Thelwell and two other officers pursued a fleeing Dawson. Thelwell

testified he pursued Dawson into a nearby apartment into the apartment, and

Thelwell testified that he observed Dawson place a bag in the ceiling of the

bedroom closet. According to Thelwell, the officers arrested Dawson and retrieved

the bag, which contained marijuana, crack cocaine, a scale with cocaine residue, a

beaker, an unloaded revolver, and money.

      In his defense, Dawson called Officer Marcus Carey, who also testified that

Dawson fled into an apartment upon the officers’ arrival at the scene, and that

Carey retrieved the bag from the ceiling containing the narcotics and firearm.

Dawson then called James Goosby, the landlord of the apartment building where

Dawson was arrested, who testified as follows. Two tenants, one older and one

younger, both with the last name Turner, were living in that particular apartment

on July 30, 2005, although there was no writing or rental agreement confirming

this. Goosby believed they worked in the landscape business. Goosby received a



                                            3
call that day from a social guest of one of his tenants living in an adjacent building,

whose name he could not remember, and this individual told him that officers were

breaking into one of Goosby’s apartment units. Goosby arrived at the scene after

the police had Dawson in custody, but was not present when the arrest was made.

Goosby believed the officers broke one of the windows in the apartment that day,

but the court instructed the jury to disregard this statement because Goosby did not

see the officers do this.

       Next, Dawson called Jalazes Turner as a witness. Turner testified that at the

time of Dawson’s arrest, Turner was living with his Uncle Mike in the apartment

where Dawson was arrested, his landlord was Goosby, and he worked with

Dawson at Moe’s Lawn Service. He was in the apartment with Dawson at the time

of Dawson’s arrest. Dawson came over to Turner’s apartment to tell him they

would not be working the next day, and Dawson had never been to Turner’s

apartment before that date. He and Dawson had been watching videos for 10 or 15

minutes, when the police broke the window, unlocked the door, entered the

apartment with their guns drawn, and placed Turner in handcuffs on the floor.

Turner told the officers that the bag with the narcotics and firearm belonged to his

uncle who was not at home, he did not know what was in the bag at the time, and

he had no reason to lie about that because it would only get his uncle into trouble.



                                           4
He stated the officer then “huddled up” to figure out what to do with Turner and

then they left. At the time of his testimony, Turner had not seen his uncle since the

day before Dawson’s arrest. The police had broken into Turner’s apartment five

days earlier because they thought he was trespassing, drew their guns, searched the

entire apartment, took him to the police station, and then let him go the next day

after confirming with Goosby that Turner was the tenant. Turner speculated that

he now thought the officers must have seen the bag in the closet at that time.

       The jury reached a guilty verdict on all five counts.1 Dawson moved for a

new trial under Federal Rule of Criminal Procedure 33 based on the newly

discovered witness testimony of Keith Simmons. In this motion, defense counsel

stated that she had interviewed Goosby in June 2006, that Goosby informed her

that a neighborhood resident had called him the day of Dawson’s arrest and told

him the police were breaking into the apartment in question, but that Goosby could

not remember the name of the caller. After this interview, defense counsel

unsuccessfully attempted to locate that unidentified witness on three separate

occasions. Four weeks after the jury reached a guilty verdict, Goosby contacted


       1
          Dawson was convicted of possession with intent to distribute cocaine, in violation of
21 U.S.C. § 841(a) (Count One); possession with intent to distribute five grams or more of crack
cocaine, in violation of 21 U.S.C. § 841(a) (Count Two); possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count Three); possession of a firearm during a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Four); and possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Five).

                                               5
defense counsel and told her that he had located the caller and that it was Simmons.

Defense counsel then interviewed Simmons, who told her that he was a

“neighboring tenant,” and saw the police force their way into Turner’s apartment

by breaking the front window, that the police did not chase Turner into the

apartment, and that Turner and Dawson were already inside the apartment when

the police broke into it. Defense counsel argued that, despite diligently making

several canvasses of the neighborhood, she was unable to identify or locate

Simmons before trial. Furthermore, she argued that Simmons’ testimony was not

cumulative, but rather would corroborate Turner’s testimony and refute the police

officers’ testimony that they observed Dawson dealing drugs and chased Dawson

into Turner’s apartment with the bag in his hand. Defense counsel asserted

Simmons’ testimony would probably result in a not-guilty verdict.

      The district court denied Dawson’s motion for a new trial. The court found

that Dawson did not show he exercised due care in discovering the identity of

Simmons and that Simmons’ testimony would be cumulative to the testimony of

Turner. The court also found that Dawson did not explain how Simmons’

testimony would lead to a different verdict given that Simmons’ testimony would

be substantially similar to that provided by Turner and Goosby.




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B. Sentencing

       Calculating Dawson’s base offense level, the probation officer found

Dawson was responsible for 33.4 grams of powder cocaine, 11.3 grams of crack

cocaine, and 77.7 grams of marijuana. Pursuant to U.S.S.G. § 2D1.1, comment.

(n.6),2 these quantities were converted into their marijuana equivalent and added

together. Under the Drug Equivalency Tables in U.S.S.G. § 2D1.1, the probation

officer found that 1 gram of powder cocaine equaled 200 grams of marijuana and 1

gram of crack cocaine equaled 20 kilograms of marijuana. Adding the drug

quantities together, the probation officer found Dawson was responsible for 310.38

kilograms of marijuana, producing a base offense level of 26 pursuant to U.S.S.G.

§ 2D1.1(a)(3), (c)(7). The probation officer applied an enhancement because

Dawson was an armed career criminal under U.S.S.G. § 4B1.4(a) and he was also a

career offender under U.S.S.G. § 4B1.1(a). Pursuant to U.S.S.G. § 4B1.1(b)(A),

this career offender status gave Dawson a base offense level of 37. Although

Dawson received an automatic criminal history category of VI pursuant to

U.S.S.G. § 4B1.1(b) and 4B1.4(c), Dawson also had a criminal history category of

VI based on several prior convictions earning him 14 criminal history points. A

base offense level of 37 and a criminal history category VI produced a Guidelines


       2
         Dawson was sentenced under the November 1, 2005, Guidelines manual, and all
Sentencing Guidelines citations are to the 2005 manual.

                                            7
range of 360 months’ to life imprisonment. This sentence would run consecutively

to Dawson’s mandatory five-year sentence for Count Four, pursuant to 18 U.S.C.

§ 924(c)(1)(A). Thus, Dawson’s final advisory Guidelines range was 420 months’

to life imprisonment.

      At sentencing, Dawson made several objections, including an objection to

the 100:1 crack/cocaine ratio in the Guidelines, but the district court overruled all

the objections. With respect to the crack/cocaine disparity objection, the court

stated: “I agree with you, Mr. Dawson, that–but I believe you and I are in the

minority. . . . I am hoping some day that the law will change and that the crack and

powder will have greater parity, but at present that is not what the law is.” When

imposing Dawson’s sentence, the court stated: “A sentence at the low end of the

Guideline range is more than sufficient to punish and deter the defendant from

future criminal activity.” (Emphasis added). The district court sentenced Dawson

to 360 months’ imprisonment for Counts 1, 2, 3, and 5, to run concurrently, and 60

months’ imprisonment for Count 4 to run consecutively–or 420 months’ total

imprisonment.




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                                 II. DISCUSSION

A. Motion for a New Trial

      We review the denial of a motion for a new trial for abuse of discretion.

United States v. Thompson, 422 F.3d 1285, 1294-95 (11th Cir. 2005). A defendant

may move the district court for a new trial based on newly discovered evidence.

Fed. R. Crim. P. 33(b)(1). A new trial based on newly discovered evidence “is

warranted only if: (1) the evidence was discovered after trial; (2) the defendant

exercised due care to discover the evidence; (3) the evidence was not merely

cumulative or impeaching; (4) the evidence was material; and (5) the evidence was

of such a nature that a new trial would probably produce a different result.”

Thompson, 422 F.3d at 1294 (quotations omitted). “The failure to satisfy any one

of these elements is fatal to a motion for new trial.” United States v. Lee, 68 F.3d

1267, 1274 (11th Cir. 1995). “‘Motions for a new trial based on newly discovered

evidence are highly disfavored in the Eleventh Circuit and should be granted only

with great caution. Indeed, the defendant bears the burden of justifying a new

trial.’” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc)

(quoting United States v. Devila, 216 F.3d 1009, 1015-16 (11th Cir. 2000)).

      We have affirmed the district court’s denial of a motion for a new trial on

the ground the newly discovered evidence would probably not produce a different



                                          9
result at a new trial. In Lee, we held that new testimony would probably not

produce a different result where the testimony was cumulative and the government

was likely to impeach the new testimony. 68 F.3d at 1274. In Thompson, we held

the new testimony would probably not produce a different result where it would

not impeach the testimony of a witness who underwent extensive cross-

examination and where the new testimony was implausible. 422 F.3d at 1295.

      The district court did not abuse its discretion in finding that Simmons’

proposed testimony would probably not result in a different verdict at a new trial.

See Lee, 68 F.3d at 1274 (stating failure to satisfy only one of the elements for

warranting a new trial is fatal to a motion for new trial). Simmons’ proposed

testimony was that (1) he was a neighboring tenant of the apartment where Dawson

was arrested, (2) he saw the police force their way in by breaking a window, and

(3) the police did not chase Dawson into the apartment because he was already

inside. Dawson argues that if the jury fully credited this testimony it would

contradict the testimony of the police officers who stated they pursued a fleeing

Dawson into the apartment after observing him selling drugs. The Government,

however, would likely be able to impeach all three elements of Simmons’ proposed

testimony. See id. Simmons’ statement that he was a “neighboring tenant” is

contradicted by Goosby’s testimony that Simmons was a social guest of a tenant.



                                          10
The Government could cross-examine Simmons as to his location and vantage

point at the time he observed the incident, whether it was possible that he failed to

see Dawson dealing drugs or fleeing, and the coincidence surrounding the fact he

must have been observing Turner’s apartment before the time the police broke into

it. It is also unclear how Simmons could know that Turner and Dawson were

already inside the apartment. The Government could also re-call Goosby and ask

him how he suddenly came upon Simmons’ identity four weeks after the trial.

Furthermore, Simmons’ proposed testimony does not corroborate many of the less

credible elements of Turner’s testimony, most notably, that the police had broken

into his apartment a few days earlier for no reason, and that the bag was already in

the apartment and belonged to his uncle, who mysteriously disappeared. Based on

these multiple potential grounds for impeachment, it is unlikely the jury would

discredit the generally consistent testimony of several police officers, and

conclude–as they would have to in order to find Dawson not guilty–that the

officers were involved in an elaborate conspiracy to frame Dawson. Thus, the

district court did not abuse its discretion by denying Dawson’s motion for a new

trial because Simmons’ testimony would probably not produce a different outcome

at a new trial. We affirm Dawson’s convictions.




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B.    Crack/Cocaine Disparity

      Recently, in Kimbrough v. United States, the Supreme Court held “the

cocaine Guidelines, like all other Guidelines, are advisory only,” and that “[t]he

judge may determine . . . in [a] particular case, a within-Guidelines sentence is

‘greater than necessary’ to serve the objectives of sentencing. In making that

determination, the judge may consider the disparity between the Guidelines’

treatment of crack and powder cocaine offenses.” __ U.S. __, 128 S. Ct. 558, 564

(2007). In Kimbrough, the district court varied below the advisory Guidelines

sentence based on its finding that the Guidelines provided a sentence greater than

necessary to accomplish the sentencing goals advanced in 18 U.S.C. § 3553(a).

The Supreme Court held the district court “appropriately framed its final

determination in line with § 3553(a)’s overarching instruction to ‘impose a

sentence sufficient, but not greater than necessary’ to accomplish the sentencing

goals advanced in § 3553(a)(2).” Id. at __, 128 S. Ct. at 575.

      The Supreme Court’s decision abrogated our holding in United States v.

Williams, that a court could not take into account the disparity between the

Guidelines’ treatment of crack and powder cocaine offenses when imposing a

defendant’s sentence. 456 F.3d 1353, 1366 (11th Cir. 2006). The district court

was bound by our holding in Williams at the time it imposed Dawson’s sentence.



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      With respect to the crack/cocaine disparity objection, the court stated: “I

agree with you, Mr. Dawson, that–but I believe you and I are in the minority. . . . I

am hoping some day that the law will change and that the crack and powder will

have greater parity, but at present that is not what the law is.” When imposing

Dawson’s sentence, the court stated: “A sentence at the low end of the Guideline

range is more than sufficient to punish and deter the defendant from future criminal

activity.” (Emphasis added). The district court was not subtle regarding its

disagreement with the crack/cocaine ratio. Additionally, the district court stated

that Dawson’s bottom-of-Guidelines range sentence was more than sufficient to

punish and deter the defendant from future criminal activity. Based on the holding

in Kimbrough that “it would not be an abuse of discretion for a district court to

conclude when sentencing a particular defendant that the crack/powder disparity

yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes,” we

vacate Dawson’s sentence and remand for resentencing.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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