                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4851



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JUAN EVANGELISTA CASTRO,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:06-cr-00054-sgw)


Submitted:   March 5, 2008                 Decided:   April 14, 2008


Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Aaron L. Cook, AARON L. COOK, PC, Harrisonburg, Virginia, for
Appellant.   John L. Brownlee, United States Attorney, Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Juan Evangelista Castro appeals his jury convictions for

conspiracy    to   distribute   five        hundred     grams    or    more   of

methamphetamine    in   violation      of     21   U.S.C.       §§    841(a)(1),

841(b)(1)(A)(viii), and 846 (2000); and possession with the intent

to distribute five hundred grams or more of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) (2000).            He was sentenced to 324

months’ imprisonment.    Finding no error, we affirm.

           Castro first claims the district court erred in denying

him a hearing under Franks v. Delaware, 438 U.S. 154 (1978).                  In

order to establish a Franks hearing is warranted, a defendant must

“(1) ‘make a substantial preliminary showing that a false statement

knowingly and intentionally, or with reckless disregard for the

truth, was included by the affiant in the warrant affidavit,’ and

(2) that the statement was necessary to the finding of probable

cause.”   United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994)

(quoting Franks, 438 U.S. at 171-72).         “This showing ‘must be more

than conclusory’ and must be accompanied by a detailed offer of

proof.”   United States v. Colkley, 899 F.2d 297, 300 (4th Cir.

1990) (quoting Franks, 438 U.S. at 171).

           Police officers utilized confidential informants to make

controlled buys of methamphetamine from a group of individuals.

Officers did not know the identity of any of the individuals except

that one went by the name “Pedro” and lived in a trailer park where


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some of the purchases had taken place.    The individuals utilized

the same vehicle in all of the transactions.    After one purchase,

officers followed the vehicle from the purchase to an apartment

complex.   The vehicle was registered in the name of Castro living

at the apartment where the vehicle parked.

           Police Investigator Doug Miller prepared an affidavit and

search warrant for the apartment.   Miller did not list any names,

but instead stated that a controlled purchase had been made from a

subject in a vehicle that officers had followed back to the

apartment.   Castro claimed Miller purposely tried to mislead the

magistrate judge because Miller knew the “subject” listed in the

affidavit was co-conspirator Pedro Alonzo, who lived at a different

residence.

           Miller testified he did not know Alonzo was the driver

until after the search and that he did not include the name of the

subjects at the apartment to mislead the magistrate judge, but

because the actual residents were unknown at that time.      As the

district court noted, the affidavit contains factual gaps and is

not well written.    However, that does not prevent the affidavit

from establishing probable cause, and there is no indication that

Miller intended to deceive the magistrate judge or displayed a

reckless disregard for the truth.       We therefore conclude the

district court did not err in denying Castro’s Franks motion.




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           Castro next claims the district court erred when it

denied his motion for a new trial.     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).   This court reviews the denial of a Rule 33 motion for abuse

of discretion.   United States v. Adam, 70 F.3d 776, 779 (4th Cir.

1995).

           At trial, police officers testified that no Spanish

interpreter was present during the search of Castro’s residence or

later during interviews and that Castro effectively communicated

with them in English.   Castro testified an interpreter was present

with police at all times.      After the conclusion of the trial,

Castro filed a motion for a new trial claiming as new evidence that

the Government presented “false evidence” to the jury.        At an

evidentiary hearing, an interpreter testified he was present during

the search of Castro’s apartment and police interviews.

           The basis for Castro’s motion for a new trial was newly

discovered evidence.    In order to warrant a new trial based on

newly discovered evidence, a defendant must show: (1) the evidence

is newly discovered; (2) the defendant used due diligence; (3) the


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evidence is “not merely cumulative or impeaching”; (4) the evidence

is material; and (5) the evidence “would probably result in an

acquittal at a new trial.”   United States v. Lofton, 233 F.3d 313,

318 (4th Cir. 2000) (internal quotation marks omitted). Unless the

defendant demonstrates all five of these factors, the motion should

be denied.   United States v. Chavis, 880 F.2d 788, 793 (4th Cir.

1989).

          The evidence of the interpreter’s presence is merely

impeaching evidence.    Castro’s attorney asked the officers about

the presence of the interpreter in an attempt to impeach their

recollection of the events.     Castro argues the presence of the

interpreter was central to his case, but the only value of the

evidence is to prove the officers did not properly recollect the

search of Castro’s apartment.   Under the third prong of the Chavis

case, a new trial on the basis of this evidence is not appropriate

because the evidence is merely impeaching.       We also conclude the

evidence would likely not result in an acquittal at a new trial

because it does not change the physical evidence found at the

apartment or the other testimonial evidence.       The district court

therefore did not abuse its discretion in denying Castro’s motion

for a new trial.

          Castro next claims the court erred when it enhanced his

sentence for perjury.   During his testimony, Castro admitted using

methamphetamine with Pedro Alonzo.      Castro admitted he traveled to


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North Carolina with Alonzo to pick up packages from Alonzo’s

source, but he claimed to not know what was in the packages.           He

admitted giving $4000-4500 for the packages, but stated the money

was a loan intended for a child in Mexico with cancer.

           Castro also testified that he provided money to others to

buy drugs and that “the only thing I thought was that [his friends]

were selling drugs.”       He insisted “these people were using me to

perhaps keep drugs in something I had no experience in.”            Castro

testified that a friend had given him the sweater that contained

the methamphetamine in his closet.        He knew there were packages in

the sweater, but he did not know what they contained.

           The sentencing court must impose a two-level adjustment

under U.S.S.G. § 3C1.1 if the defendant willfully obstructed or

impeded the administration of justice during the investigation,

prosecution, or sentencing of the offense of conviction and any

relevant conduct relating to the offense of conviction.                The

adjustment applies when the district court determines that a

defendant committed perjury.      U.S.S.G. § 3C1.1 cmt. 4(b); see also

United States v. Dunnigan, 507 U.S. 87, 94 (1993).         The adjustment

for   perjury   is   not   applicable   merely   because   the   defendant

testified and was subsequently convicted.         Dunnigan, 507 U.S. at

95.   The court must find that the defendant gave false testimony

under oath “concerning a material matter with the willful intent to




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provide false testimony, rather than as a result of confusion,

mistake, or faulty memory.”         Id. at 94.

            Castro argues the district court imposed the enhancement

automatically because he testified and was convicted.                     However,

Castro’s testimony directly and materially contradicted the jury’s

finding of guilt, indicating that the jury had found that he

falsely testified.       Castro does not argue that the testimony was

the result of confusion, mistake, or faulty memory.                      Thus, we

conclude   that    the   court    did    not    err   when   enhancing    Castro’s

sentence for obstruction of justice.

            Castro finally claims the court erred in calculating the

drug quantity attributable to him at sentencing.                  At sentencing,

the quantity and nature of drugs attributable to a defendant may be

established by a preponderance of the evidence, and sentencing

findings in that regard are to be disturbed only if they are

clearly erroneous.       See United States v. Carter, 300 F.3d 415, 425

(4th Cir. 2002); United States v. Cook, 76 F.3d 596, 604 (4th Cir.

1996).     A sentencing court has broad discretion concerning its

determination of the nature and quantity of such drugs.                  See Cook,

76 F.3d at 604.

            The    district      court    found       the    quantity    of   drugs

attributable      to   Castro    exceeded       the   five-kilogram      threshold

required for a base offense level of thirty-six.                The court came to

this conclusion by a preponderance of the evidence by combining a


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ten—pound shipment (the remnants of which were found in Castro’s

closet) with the other trips made by Castro to North Carolina with

Alonzo.     Alonzo     specifically    remembered    a    two—pound     and   a

three—pound shipment of methamphetamine. Though Castro questions

the credibility of Alonzo’s testimony, the district court found it

credible, and such witness credibility determinations are generally

given deference on appeal. See United States v. Locklear, 829 F.2d

1314, 1317 (4th Cir. 1987).        Castro also questions the court’s

calculations,    but    the    court     declined   to    make    a   precise

determination because the quantity exceeded five kilograms. Adding

the three shipments, the total equals 6.82 kilograms, an amount in

excess of the five-kilogram threshold.        We therefore find no clear

error in the court’s calculation of drug quantity.

           Accordingly, we affirm Castro’s convictions and sentence.

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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