     Case: 13-50570      Document: 00512617202         Page: 1    Date Filed: 05/02/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50570
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 2, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOHN LEE POSEY, also known as John-John,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:12-CR-277-3


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       John Lee Posey was convicted by a jury of conspiracy to possess with
intent to distribute, distribute, and manufacture 280 grams or more of crack
cocaine and being a felon in possession of ammunition. Posey filed a pro se
motion for a new trial based on newly discovered evidence, which the district
court denied. Posey was sentenced to a total of 348 months of imprisonment
and 10 years of supervised release. He timely appealed.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-50570

      Posey contends that the district court abused its discretion in denying
his motion for a new trial. He asserts that the information he received from
Julian Resendez that two Government witnesses were overheard discussing
their testimony prior to Posey’s trial in an effort to receive a reduced sentence
constituted “newly discovered” evidence. He requests this court to vacate the
district court’s judgment and remand his case for a new trial.
      This court reviews the denial of a motion for a new trial for an abuse of
discretion. United States v. Piazza, 647 F.3d 559, 564-65 & n.3 (5th Cir. 2011).
To obtain a new trial based on newly discovered evidence, the defendant must
show that (1) the evidence is newly discovered and was unknown to him at the
time of trial, (2) the failure to detect the evidence was not due to his lack of
diligence, (3) the evidence is not merely cumulative or impeaching, (4) the
evidence is material, and (5) the evidence if introduced at a new trial would
probably produce an acquittal. Id. at 565 (referring to these as the “Berry rule”
prerequisites). The failure to demonstrate any one of these Berry factors is
fatal to the motion. Id.
      As the Government argues and the district court determined, evidence
that two of the Government’s witnesses, Christian Aguirre and Trey Young,
were discussing their testimony prior to trial was known to Posey during trial.
To the extent Posey contends that the “newly discovered” evidence was the
identity of Julian Resendez, Posey fails to explain why he did not seek a
continuance in order to explore the matter and obtain the identity of the
witness. Thus, he fails to show that he exercised due diligence to support his
motion for a new trial. See United States v. Wall, 389 F.3d 457, 470 (5th Cir.
2004). Moreover, evidence that the two witnesses were testifying falsely in
hopes to obtain a reduced sentence was not evidence that would exonerate
Posey, but rather would constitute impeachment evidence. See United States



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                                  No. 13-50570

v. Pena, 949 F.2d 751, 758 (5th Cir. 1991). Additionally, there were other
witnesses at trial besides Aguirre and Young who testified that Posey was
involved in the manufacturing and distribution of crack cocaine. Thus, as the
district court concluded, even assuming the evidence was “newly discovered,”
Posey fails to show that the evidence was material and would have resulted in
his acquittal. See Piazza, 647 F.3d at 565. Accordingly, Posey has failed to
show that the district court abused its discretion in denying his motion for a
new trial. See id. at 564-65.
      Posey contends that the district court abused its discretion in denying
his motion for a new trial without conducting an evidentiary hearing.
Specifically, he asserts that the district court should have granted his request
for a continuance, appointed him an investigator, and allowed him to obtain
trial transcripts to support his argument that the perjured testimony of
Aguirre and Young affected the outcome of the trial.
      As the Government points out and Posey acknowledges in his brief, he
was granted a hearing on his motion for a new trial. In fact, the district court
appointed new counsel to represent Posey at the hearing. As explained above,
the record refutes Posey’s contention that Aguirre’s and Young’s conversations
regarding their testimony was unknown to Posey at the time of trial. Further,
even if Posey was unaware of Aguirre’s and Young’s conversations and
purported false testimony, such evidence would only constitute impeachment
evidence. Because he fails to satisfy two of the Berry factors, Posey cannot
show that the district court abused its discretion in not granting him an
opportunity to obtain an investigator and trial transcripts in an effort to satisfy
the last Berry element, i.e., that the outcome of the trial would have been
different had the evidence been available. See United States v. Bishop, 629
F.3d 462, 470 (5th Cir. 2010).



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      As he did before the district court, Posey contends that the district court
erred in assessing him two criminal history points under U.S.S.G. § 4A1.1(d)
because he did not commit the instant offense “while under a criminal justice
sentence.” According to Posey, the two points were not warranted because
failure to pay child support is civil in nature and the contempt charge was “not
to punish [him] for failing to pay his child support, but to coerce him into
paying child support in the future.”
       A district court’s interpretation or application of the Guidelines is
reviewed de novo, and its factual findings are reviewed for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).            The
presentence report (PSR) assessed Posey two criminal history points pursuant
to § 4A1.1(d) because Posey was on probation for contempt of court when he
committed the instant offense. In 2009, Posey was sentenced to a suspended
sentence of 180 days of imprisonment and 10 years of probation for contempt
of court due to nonpayment of child support. “[A] ‘criminal justice sentence’
means a sentence countable under § 4A1.2 . . . having a custodial or supervisory
component, although active supervision is not required.” §4A1.1 comment.
(n.4). According to U.S.S.G. § 4A1.2(c) a sentence for contempt of court is
counted for purposes of § 4A1.1(d) if, inter alia, probation exceeds one year or
imprisonment lasts at least 30 days. See § 4A1.2(c)(1). Accordingly, Posey’s
argument lacks merit.
      Posey also asserts for the first time that the two-point assessment under
§ 4A1.1(d) was erroneous because the PSR failed to demonstrate that he validly
waived his right to counsel. Because he raises this claim for the first time,
plain error review applies. See United States v. Alvarado-Santilano, 434 F.3d
794, 795 (5th Cir. 2005). A defendant may collaterally attack a prior conviction
used for sentencing purposes if the prior conviction was obtained in violation



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of his constitutional right to counsel. Custis v. United States, 511 U.S. 485,
487, 496 (1994). The instant conviction occurred in Texas, and, therefore,
Posey bears the burden of proving that he did not competently and intelligently
waive his right to counsel. See United States v. Rubio, 629 F.3d 490, 493 (5th
Cir. 2010).     The PSR specifically states that Posey “Waived counsel
representation.” Posey offers nothing to rebut the PSR’s findings. Accordingly,
he has failed to show that the district court plainly erred in using the conviction
in the calculation of his criminal history score. See Rubio, 629 F.3d 494.
      Posey contends that his sentence is unconstitutional because the
convictions used to enhanced his sentence were not alleged in his indictment.
In support of his argument, Posey relies on Apprendi v. New Jersey, 530 U.S.
466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013).           Posey
acknowledges his argument is foreclosed by Almendarez-Torres v United
States, 523 U.S. 224, 226-27 (1998), but raises it to preserve for further review.
      In Alleyne, the Supreme Court extended the reasoning of Apprendi to
statutory minimum sentences, holding that any fact that increases the
prescribed statutory minimum sentence is an element of the offense that must
be submitted to a jury to be proved beyond a reasonable doubt. Alleyne, 133
S. Ct. at 2156-63. The Supreme Court specifically noted, however, that its
decision did not revisit Almendarez-Torres and the exception that it had carved
out for the fact of a prior conviction. Id. at 2160 n.1. Thus, as he acknowledges,
Posey’s argument is foreclosed.
      AFFIRMED.




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