           Case: 14-11438   Date Filed: 10/19/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 14-11438; 14-14502
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20614-DMM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                  versus

KAREEM BRINSON,

                                                         Defendant-Appellant.

                      ________________________

               Appeals from the United States District Court
                   for the Southern District of Florida
                      ________________________

                            (October 19, 2015)

Before MARTIN, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Kareem Brinson was convicted after a jury trial and sentenced to 240-

months imprisonment on three counts: possession of a firearm by a convicted

felon, 18 U.S.C. §§ 922(g)(1), 924(e), possession with intent to distribute cocaine

base, 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug

trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). He appeals his convictions and

Armed Career Criminal Act (ACCA)-enhanced sentence, and he also appeals the

district court’s denial of his Federal Rule of Criminal Procedure 33 motion for a

new trial based on newly discovered evidence.

      About his trial and convictions, Brinson argues the government elicited

improper testimony and made improper statements. About his sentence, he argues

it was improper to sentence him under the ACCA. And about his Rule 33 motion

for a new trial, he argues the district court abused its discretion by denying his

motion and an evidentiary hearing. We affirm his convictions and the denial of his

Rule 33 motion, but we vacate and remand for resentencing in light of the Supreme

Court’s decision that the ACCA’s residual clause is unconstitutionally vague.

                                           I

      We begin by addressing Brinson’s arguments that the government elicited

improper testimony and made improper statements during his jury trial. Brinson’s

first two arguments are raised for the first time on appeal, so we review them only

for plain error. See United States v. Rivera, 780 F.3d 1084, 1090 (11th Cir.



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2015). 1 Brinson says the district court erred in permitting the government to:

(1) cross-examine his cousin about whether she wanted him out of jail and would

help in any way she could; and (2) make remarks during closing arguments that

police officers risked their lives and that Brinson’s prosecution was part of a larger

law-enforcement initiative aimed at eradicating drug trafficking and firearm

violence.

       The district court did not plainly err in admitting the questions posed to

Brinson’s cousin. This line of questioning—asking whether she would help him in

any way she could—was permissible because it was aimed at revealing bias.2 See

Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974) (noting that a

witness’s credibility may be challenged on cross-examination through questions

aimed at uncovering potential biases, prejudices, or motives for testifying).

       Neither did the district court plainly err in allowing the government to make

the challenged remarks during closing. A prosecutor’s remarks at closing may

warrant reversal if they are both improper and prejudicial to the defendant’s

substantial rights. United States v. Boyd, 131 F.3d 951, 955 (11th Cir. 1997).

Even assuming that these remarks were improper, Brinson cannot show that they

       1
          “To establish plain error, a defendant must show that (1) there is an error; (2) that is
plain or obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial and not
harmless; and (4) that seriously affects the fairness, integrity or public reputation of the judicial
proceedings.” Rivera, 780 F.3d at 1090 (quotation omitted).
       2
          Brinson also argues this line of questioning was inappropriate because it informed the
jury that he was incarcerated. We address that aspect of his argument later in this opinion.


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affected his substantial rights in light of the overwhelming evidence of his guilt. 3

See id. (determining that a prosecutor’s reference to the “war on drugs” at closing

was improper, but concluding that any error was harmless because the evidence of

guilt was overwhelming).

       Brinson’s remaining challenges about his trial and convictions relate to the

government’s (1) eliciting testimony that he was detained in jail before trial; and

(2) eliciting testimony, as well as making its own statements at closing, indicating

that Brinson had been shot. Brinson objected to this testimony and these

statements, see Fed. R. Evid. 103(b), so we review de novo these claims of

prosecutorial misconduct, Rivera, 780 F.3d at 1090.

       As to the government’s questions about whether he was in jail, the district

court sustained Brinson’s objection and gave curative instructions, which purged

any taint. See United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992). And

as to the testimony and statements that Brinson had been shot, even on de novo

review any error was harmless given the overwhelming evidence of guilt. See

Rivera, 780 F.3d at 1096, 1100 (explaining that prosecutorial misconduct is not

reversible unless the defendant shows that the outcome of the trial would have

been different).
       3
          The evidence at trial showed: the arresting officer saw Brinson holding a sandwich bag
containing what the parties later stipulated was crack cocaine; the officer heard and saw a gun
fall to the ground from Brinson’s pants as he was being handcuffed; Brinson admitted to an ATF
agent that he possessed and sold the crack cocaine; and Brinson’s DNA matched (to a one-in-
fifteen probability) DNA recovered from the gun.


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                                          II

      We next turn to Brinson’s arguments about his motion for a new trial based

on newly discovered evidence. “Upon the defendant’s motion, the court may

vacate any judgment and grant a new trial if the interest of justice so requires.”

Fed. R. Crim. P. 33(a). Motions for a new trial are “highly disfavored,” and

district courts should exercise caution in awarding a new trial based on newly

discovered evidence. United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir.

2003). To merit a new trial based on newly discovered evidence, the defendant

must show that:

      (1) the evidence was discovered after trial, (2) the failure of the
      defendant to discover the evidence was not due to a lack of due
      diligence, (3) the evidence is not merely cumulative or impeaching,
      (4) the evidence is material to issues before the court, and (5) the
      evidence is such that a new trial would probably produce a different
      result.

Id. “The failure to satisfy any one of these elements is fatal to a motion for a new

trial.” United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005)

(quotation omitted). A defendant is not entitled to an evidentiary hearing on a

motion for a new trial if “the acumen gained by a trial judge over the course of the

proceedings [made her] well qualified to rule on the [motion] without a hearing.”

United States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997). We review for abuse

of discretion both the district court’s denial of a Rule 33 motion for new trial based




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on newly discovered evidence and its decision not to hold an evidentiary hearing.

Jernigan, 341 F.3d at 1287; Schlei, 122 F.3d at 990.

      The district court did not abuse its discretion in denying Brinson’s Rule 33

motion. Brinson says he has new evidence that shows the incident reports (which

describe the circumstances of his arrest) were generated on the computers of the

arresting officers. He says this evidence demonstrates that the officers committed

perjury when they testified at trial that they did not author the reports. But this

evidence is insufficient to sustain a motion for new trial because it does not satisfy

at least three of the five criteria: it could have been discovered through the exercise

of diligence prior to or during trial; it is merely for impeachment of the officers’

credibility; and it is not probable that it would lead to a different result at a new

trial given the other overwhelming evidence of guilt. See supra note 3. Neither

has Brinson shown that the district court erred by denying him an evidentiary

hearing on his Rule 33 motion. The court had all the evidence necessary to decide

the Rule 33 motion.

      Somewhat differently, Brinson argues he is entitled to a new trial because

the government denied him due process by failing to investigate the officers’

alleged perjury relating to the authorship of the incident reports. We review this

argument for plain error as it was raised for the first time on appeal. Rivera, 780

F.3d at 1090. In general, the government’s presentation of perjured testimony or



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failure to correct false evidence violates due process. Giglio v. United States, 405

U.S. 150, 153–55, 92 S. Ct. 763, 766 (1972). To prevail on a Giglio claim, the

defendant must establish that (1) the prosecutor knowingly used perjured testimony

or failed to correct what he subsequently learned was false testimony; and (2) the

falsehood was material. United States v. Dickerson, 248 F.3d 1036, 1041 (11th

Cir. 2001). Brinson cannot show error, plain or otherwise, because he cannot show

that the government knowingly presented any false testimony.

                                         III

      Finally, we turn to Brinson’s sentence. Under the ACCA, a person who

violates § 922(g) and has three prior convictions “for a violent felony or a serious

drug offense, or both, committed on occasions different from one another” is

subject to a mandatory minimum sentence of 15 years. 18 U.S.C. § 924(e)(1). The

ACCA defines a “violent felony” in several ways, one of which is commonly

called the residual clause. Under that clause, a violent felony is any offense that

“otherwise involves conduct that presents a serious potential risk of physical injury

to another.” Id. § 924(e)(2)(B)(ii).

      The district court sentenced Brinson under the ACCA after finding that he

had three qualifying prior convictions, one of which qualified under the residual

clause. Brinson argued in his opening brief that the residual clause is

unconstitutionally vague. In light of Johnson v. United States, 576 U.S. ___, 135



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S. Ct. 2551 (2015), we now know that Brinson was correct. See id. at 2563. He

must be resentenced without reference to the residual clause.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING.




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