                                                               [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                    ________________________________

                               No. 97-8611
                    ________________________________

                    D.C. Docket No. 5:94-CR-10-001-WLS




UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,


     versus


WENDELL J. KERSEY,

                                        Defendant-Appellant.



_________________________________________________________________

                  Appeal from the United States District Court
                       for the Middle District of Georgia
_________________________________________________________________

                            (December 16, 1997)

Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.

HATCHETT, Chief Judge:
       Appellant Wendell Kersey appeals his conviction and sentence for two counts of

perjury, in violation of 18 U.S.C. § 1621. We affirm.

                                   I. BACKGROUND

       In March 1995, a federal grand jury returned an indictment against Kersey,

alleging that he twice lied under oath during a 1989 civil suit that the government brought

against him as guarantor of a defaulted Small Business Administration (SBA) loan.

During the discovery phase of the civil action, in both an affidavit and a deposition,

Kersey claimed that the signature on the SBA guarantor agreement was not his signature.

Among other evidence at the criminal trial, the government presented testimony from

Royce Cooley, who claimed to have witnessed Kersey sign the guarantor agreement.

       After conviction but before imposition of sentence, the government disclosed to

Kersey, for the first time, the existence of a document that purported to be a duplicate

original of the guarantor agreement. In response, Kersey filed a “Motion for New Trial

Based on Newly Discovered Evidence Pursuant to Rule 33.” The district court held an

evidentiary hearing, where the government presented one witness, an expert who opined

that the signature on the duplicate original matched Kersey's. The district court thereafter

denied Kersey's motion, finding that the new evidence -- the duplicate original -- failed to

meet the standard for a new trial under Federal Rule of Criminal Procedure 33.

       At sentencing, the district court adopted the probation officer's recommendation in

the presentence investigation report (PSR) to apply the 1997 version of the United States

Sentencing Guidelines. Kersey did not object to this recommendation, either in writing or

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in open court. Based on a total offense level of fourteen and criminal history category of

I -- which generated a sentencing range of fifteen to twenty-one months -- the district

court sentenced Kersey to fifteen months imprisonment and three years supervised

release.

                                        II. ISSUES

       We discuss: (1) whether the district court should have granted a new trial under

Brady v. Maryland, 373 U.S. 83 (1963), and (2) whether the district court's application of

the 1997 version of the Guidelines violated the Ex Post Facto Clause.

                                  III. CONTENTIONS

       Kersey contends that the district court employed the wrong legal standard in its

order denying his motion for new trial. Kersey argues that, under Brady, the duplicate

original constituted crucial impeachment evidence. The government denies that the

duplicate original has any impeachment value and asserts that Kersey failed to present

properly his Brady argument in the district court.

       As to the second issue, Kersey contends that the district court should have applied

the 1989 version of the Guidelines in effect at the time of his offense instead of the 1997

version. Under the 1989 version, Kersey asserts that the district court would have

grouped his perjury counts, resulting in a total offense level of twelve and a range of ten

to sixteen months. The government claims that Kersey also failed to preserve this

argument and contends that even under the 1989 version the district court would not have

grouped the counts.

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                                      IV. DISCUSSION

                                                   A.

        Generally, this court reviews a district court's denial of a motion for new trial

based on a Brady violation for abuse of discretion. United States v. Newton, 44 F.3d 913,

918 (11th Cir.), cert. denied, 116 S. Ct. 161 (1995). If, however, the defendant did not

precisely articulate a Brady violation in his or her motion for new trial, this court need

only conduct a plain error review. See United States v. Noriega, 117 F.3d 1206, 1213 n.4

(11th Cir. 1997); United States v. Hawkins, 566 F.2d 1006, 1013 (5th Cir. 1978), cert.

denied, 439 U.S. 848 (1978). In this case, Kersey did not properly preserve his Brady

argument. Kersey styled and presented his written motion for new trial as one brought

exclusively under the “new evidence” prong of Federal Rule of Criminal Procedure 33.1

While at the evidentiary hearing Kersey did mention Brady and cases interpreting it, he

made no attempt, either orally or in writing, to amend his motion. Instead, Kersey asked

the district court to employ Rule 33's new evidence standard as we articulated it in United




   1
       That rule provides, pertinent part, that:

        The court on motion of a defendant may grant a new trial to that defendant
        if required in the interest of justice. . . . A motion for new trial based on the
        ground of newly discovered evidence may be made only before or within
        two years after final judgment . . . . A motion for new trial based on any
        other grounds shall be made within 7 days after verdict . . . .

Fed. R. Crim. P. 33 (emphasis added).

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States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989).2 Accordingly, because

Kersey did not properly present the Brady issue to the district court, we will not set aside

Kersey's convictions unless the government's unintentional suppression of the duplicate

original guarantor agreement “seriously affect[ed] the fairness, integrity or public

reputation of [the] judicial proceeding.” United States v. Hastamorir, 881 F.2d 1551,

1559 (11th Cir. 1989).

        We conclude that the district court did not plainly err in failing to analyze Kersey's

claim under Brady. First, in light of the unchallenged testimony from the expert witness

at the evidentiary hearing that the signature on the duplicate original belonged to Kersey,

that document does not serve to exculpate him. See Brady, 373 U.S. at 87. Likewise, we

reject Kersey's bare assertion that the duplicate original served as a “practice” form for

the phantom forger of his signature. Next, we cannot say that the duplicate original

would have had “a definite impact on the credibility of an important prosecution witness.”

United States v. Crockett, 534 F.2d 589, 601 (5th Cir. 1976). Contrary to Kersey's view,

cross-examining Cooley about whether he witnessed Kersey sign two, as opposed to one,



   2
       The standard for a new trial based on new evidence is a five-part test:

        (1) the evidence must be discovered following trial; (2) the movant must
        show due diligence to discover the evidence; (3) the evidence must not be
        merely cumulative or impeaching; (4) the evidence must be material to
        issues before the court; and (5) the evidence must be of such a nature that a
        new trial would probably produce a new result . . . .

United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989) (citations omitted).

                                               5
guarantor agreements would not have, with any reasonable probability, changed the

verdict. See United States v. Arnold, 117 F.3d 1308, 1315 (11th Cir. 1997). Readily

available evidence that Kersey also signed the duplicate original would have greatly

outweighed any nominal information elicited from such an inquiry.

                                              B.

       As to properly preserved sentencing issues, this court reviews de novo a district

court's application of the Guidelines. United States v. Newsome, 68 F.3d 1276, 1279

(11th Cir. 1995), cert. denied, 510 U.S. 1062 (1996). Kersey, however, complains for the

first time on appeal that the district court erred in applying the 1997 version of the

Guidelines instead of the 1989 version. Because the district court provided to Kersey

every opportunity to raise the issue below, we will review his Ex Post Facto argument

only if failure to do so would result in manifest injustice. See United States v. Jones, 899

F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906 (1990). We find no manifest

injustice in refusing to review Kersey's fifteen month sentence, as it falls within the 1989

guideline range which Kersey contends applies.




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                            V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

                              AFFIRMED.




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