                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 09-5040


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

CARLOS B. GUZMAN CRUZ, a/k/a Gato,

               Defendant - Appellant.



                            No. 09-5049


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

JOSE M. AGUILAR ORANTES, a/k/a Santos, a/k/a Psychie,

               Defendant - Appellant.



                            No. 09-5057


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

DENNIS L. GIL BERNARDEZ, a/k/a Negro, a/k/a Big Homie, a/k/a
Dopre, a/k/a Pando,
               Defendant - Appellant.



                            No. 10-4773


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

CARLOS B. GUZMAN CRUZ, a/k/a Gato,

               Defendant - Appellant.



                            No. 10-4774


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

JOSE M. AGUILAR ORANTES, a/k/a Santos, a/k/a Psychie,

               Defendant - Appellant.



                            No. 10-4775


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

DENNIS L. GIL BERNARDEZ, a/k/a Negro, a/k/a Big Homie, a/k/a
Dopre, a/k/a Pando,


                                 2
                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Liam O’Grady, District
Judge.   (1:09-cr-00216-LO-1; 1:09-cr-00216-LO-2; 1:09-cr-00216-
LO-3)


Submitted:   June 30, 2011                Decided:   July 18, 2011


Before KING, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory Todd Hunter, Arlington, Virginia; Alan H. Yamamoto,
Alexandria, Virginia; Craig W. Sampson, BARNES & DIEHL, PC,
Chesterfield, Virginia, for Appellants.       Neil H. MacBride,
United States Attorney, Patricia Haynes, Zachary Terwilliger,
Assistant United States Attorneys, Lanny A. Breuer, Assistant
Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney General, J. Campbell Barker, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 3
PER CURIAM:

              In these consolidated appeals, Dennis L. Gil Bernardez

and   Jose    M.    Aguilar    Orantes   appeal    their     sentences      for,    and

Carlos   B.    Guzman      Cruz   challenges    his    conviction      of   offenses

arising from, three shootings on October 6, 2008, in Reston,

Virginia, and the subsequent effort to dispose of the gun used

in the shootings.          We affirm the sentences imposed on Bernardez

and Aguilar Orantes, and we affirm Cruz’ conviction.                         We also

affirm the district court’s denial of the Appellants’ motion for

a new trial based on newly discovered evidence.

              The   government’s     evidence     at   trial    established        that

Bernardez     was    the   leader   of   the    Normandie      Locos   Salvatrucha

(NLS), a clique of the Mara Salvatrucha (MS-13) gang in northern

Virginia.      Aguilar Orantes was a member of the NLS living in

northern Virginia.            Cruz was a member of the NLS living in

Richmond, Virginia.           The shootings were preceded by an attack on

David Kuk, a former member of the rival 18th Street gang, by MS-

13 member Antonio Urrutia Barrerra and others traveling in a

Ford Explorer driven by Jose Aguilar Orantes.                  That was followed

by an attack on Aguilar Orantes and his girlfriend by Kuk and

his friend Dalton Beck, a former Crips gang member.

              On    Monday,    October   6,   2008,    Kuk   was   with     Beck    and

Malcom Wilson at Freetown Court.               Aguilar Orantes, Barrera, and

Dennis Gil Bernardez walked up to Kuk, Beck, and Wilson.                            As

                                          4
they   approached,         Bernardez       asked    Aguilar    Orantes      in    Spanish,

“Which     ones?”          Aguilar     Orantes       pointed    to    Kuk    and        Beck.

Bernardez       drew   a   handgun     and    pointed    it    at    Beck,       who    fled.

Bernardez fired at Beck but missed him, although the bullet went

through his sweatshirt.

            Bernardez then shot Kuk multiple times while Kuk was

trying to run away.            Wilson held up his hands and said, “I am

not in their gang, I have no problem with you.”                                  Bernardez

started to walk away, but then said to Wilson, “I can’t leave

any evidence.”         Bernardez shot Wilson at least twice.                       Kuk and

Wilson suffered serious injuries, but survived.

            Jorge      Palacios,       a     former    MS-13    member       turned       FBI

informant in Richmond, Virginia, testified at trial that, before

and after the shootings, he made audio and video recordings of

his conversations with Cruz, who had previously sold him guns

from northern Virginia which had been used by MS-13 members in

crimes     in     northern     Virginia.           Palacios    told    Cruz        he    had

connections who could take guns used in shootings out of the

country.

            On October 6, 2008, Cruz told Palacios he wanted to

buy a “clean” gun to take to northern Virginia to exchange for

two guns that had been used in crimes there.                     On October 7, Cruz

called Bernardez in northern Virginia.                   Palacios recorded Cruz’s

half of the conversation, which concerned the Monday, October 6

                                              5
shootings, and the need to get rid of a gun that had been used

in more than thirteen shootings.                  On October 9, 2008, Palacios

Cruz       asked   Palacios   if    he   had     checked   the    news    coverage    of

Monday’s shootings.

               On October 17, 2008, Cruz and another person went to

northern       Virginia   and      brought     Barrera,    who    was    present    when

Bernardez shot Kuk and Wilson, to Richmond to stay in a safe

house, a hotel room Cruz rented.                     That evening, Barrera was

involved in stabbing a rival gang member. 1                      The next day, Cruz

called Bernardez and they agreed that, because of the stabbing,

the gun deal would be delayed.

               On October 31, 2008, Cruz brought the guns to Richmond

from       northern   Virginia.          The     next   day,     November 1,       2008,

Palacios first went to the safe house without any surveillance

equipment to see the guns.               Cruz held up one of the guns and

told him “the gun had been used in Monday’s shooting.”                       Palacios

then met with an FBI agent and returned to the safe house later

that day to buy the two guns.                A firearm and ballistics forensic

expert testified at trial that the bullets and bullet jackets

found at the scene of the shootings were fired from one of the

guns that Palacios bought from Cruz, a .357 magnum revolver.


       1
       Barrera was separately prosecuted for the stabbing and for
another shooting in northern Virginia.



                                             6
                None the defendants moved for acquittal under Fed. R.

Crim. P. 29.            Bernardez and Aguilar Orantes were convicted of

conspiracy to commit murder in aid of racketeering, attempted

murder in aid of racketeering, assault with a dangerous weapon

in aid of racketeering, and violations of 18 U.S.C. § 924(c)

(2006).         Aguilar          Orantes        was       acquitted           of    the     assault         and

attempted murder of Wilson.                           Cruz was convicted of being an

accessory        after       the     fact        to       attempted           murder        in     aid      of

racketeering          and     assault       with          a    dangerous           weapon    in    aid       of

racketeering.

                Bernardez         was     sentenced            to    a    total      of     960    months’

imprisonment, which included sentences of ten years on Count 9,

and twenty-five years on Counts 10 and 11, all consecutive to

the sentences on the remaining counts and to each other, as

required        under       18    U.S.C.        § 924(c)            (2006).          Aguilar       Orantes

received        a     total       sentence        of          660     months,         which       included

consecutive sentences of ten years for Count 9 and twenty-five

years     for       Count    11.         Cruz    was          sentenced        to    a    total        of   144

months’     imprisonment.                 Bernardez            and       Aguilar         Orantes       argued

unsuccessfully          at        their     joint             sentencing           hearing       that       the

§ 924(c) sentences could run concurrently.

                Six months after they were sentenced, Appellants moved

for   a   new       trial        under    Fed.     R.         Crim.      P.    33    based        on    newly

discovered evidence.                They alleged that Sergio Gerardo Amador, a

                                                      7
government witness who testified early in the trial about MS-

13’s racketeering activities, had given false testimony when he

said he fatally shot Melvin Reyes, a member of a rival gang.

The    new    trial    motion      was     based    on   information         that    another

incarcerated MS-13 member, Jose Enrique Gordillo Portocarrero,

believed      that    Amador       had    falsely    claimed      to    be    involved      in

Reyes’ murder.         After a hearing, the district court determined

that Gordillo had confused the Reyes murder with another murder,

that his information was inadmissible hearsay that could not

necessitate a new trial, and that the government had presented

overwhelming         evidence      of     racketeering         activity      even    without

Amador’s testimony.           The motion for a new trial was denied.

               In this appeal, Bernardez and Aguilar Orantes contend

that    § 924(c)      does     not       require    consecutive        sentences      for   a

“single      use,”    as    they     characterize        the    shots     fired     at    Kuk,

Wilson, and Beck.           They rely on dicta in United States v. Camps,

32 F.3d 102, 106-07 (4th Cir. 1994) (accepting for purposes of

the    case,    but    not    adopting,       the    government’s         position        that

multiple concurrent § 924(c) sentences arising from simultaneous

offenses was not error).                   However, their position is at odds

with Deal v. United States, 508 U.S. 129, 135 (1993) (holding

that   a     second    or    subsequent      § 924(c)      conviction        is     any   such

conviction after the first conviction, without regard to whether

the offenses occurred in a single or separate incidents), and

                                              8
United States v. Higgs, 353 F.3d 281, 333-34 (4th Cir. 2003)

(holding     that       multiple   consecutive       sentences    were    appropriate

where three victims were shot and killed in one incident). 2

             Section 924(c)(1)(A) provides that, “[e]xcept to the

extent that a greater minimum sentence is otherwise provided by

this subsection or by any other provision of law,” any person

who violates § 924(c) is subject to a mandatory minimum sentence

of five years, § 924(c)(1)(A)(i), or seven years if the firearm

is brandished, § 924(c)(1)(A)(ii), or ten years if the firearm

is    discharged,         § 924(c)(1)(A)(iii).             Aguilar       Orantes     and

Bernardez     argue       that   the   “except”     clause     means    that,    when   a

defendant is subject to a mandatory minimum sentence under more

than one subsection of § 924(c), the lower sentence should be

concurrent with the higher sentence.                      They rely on decisions

that have interpreted § 924(c) in this manner but are no longer

good law, principally United States v. Williams, 558 F.3d 166

(2d   Cir.    2009),       abrogated    by       Abbott   v.   United    States,     and

Gould v. United States, 131 S. Ct. 18 (2010) (hereafter Abbott).

             The Supreme Court held in Abbott that a defendant is

subject      to     a    mandatory     minimum       sentence     for     a     § 924(c)

conviction even if he also receives a higher mandatory minimum

      2
       The government suggests that Aguilar Orantes and Bernardez
are challenging their multiple § 924(c) convictions, as well as
their sentences. However, they do not make that argument.



                                             9
sentence on another count of conviction.                   Abbott, 131 S. Ct. at

23.     Although       Abbott   and    Gould     each   had    only   one   § 924(c)

conviction, the Supreme Court rejected the reasoning in Williams

and the other cases on which Aguilar Orantes and Bernardez rely.

The Supreme Court held that the “except” clause simply requires

the sentencing judge to impose the highest applicable sentence

under    § 924(c)(1)(A),        rather      than    stacking     sentences      under

several subsections for one § 924(c) conviction, and “furnishes

the same no-stacking instruction for cases in which § 924(c) and

a    different    statute    both     punish     conduct   offending      § 924(c).”

Id. at 30.       Thus, the district court did not err when it imposed

consecutive       sentences     for     Bernardez’      and     Aguilar      Orantes’

multiple § 924(c) convictions.

            Cruz contends that the evidence was insufficient to

support his convictions for accessory after the fact.                       To prove

that Cruz was an accessory after the fact as charged in Counts

13 and 14, the government had to prove (1) that Cruz knew that

Bernardez or Aguilar Orantes had committed the offenses charged

in    Counts     3-5   and   6-8;     (2)    that   Cruz      received,     relieved,

comforted, or assisted one or both of them; and (3) that Cruz

did so in order to hinder or prevent their apprehension, trial,

or punishment.

            Although Cruz did not move for a judgment of acquittal

under Rule 29 at trial, generally, a jury’s verdict “must be

                                            10
sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”                         Glasser v. United

States, 315 U.S. 60, 80 (1942); see United States v. Perkins,

470 F.3d 150, 160 (4th Cir. 2006).                         The court considers both

circumstantial         and   direct       evidence,         drawing       all     reasonable

inferences from such evidence in the government’s favor.                                United

States    v.    Harvey,      532   F.3d    326,      333     (4th    Cir.       2008).     In

evaluating      sufficiency        of   the     evidence,      this       court    does    not

reweigh the evidence or reassess the factfinder’s determination

of witness credibility, United States v. Brooks, 524 F.3d 549,

563   (4th      Cir.    2008),      and       “can        reverse    a     conviction       on

insufficiency      grounds     only       when     the     prosecution’s        failure     is

clear.”        United States v. Moye, 454 F.3d 390, 394 (4th Cir.

2006) (en banc) (internal quotation marks omitted). 3

               Cruz argues first that the evidence did not show that

he knew who was involved in the shootings on October 6, 2008, or

that the gun he sold to Palacios on November 1, 2008, was the

gun used in the October 6 shootings.                        He also argues that the

district       court   instructed       the        jury    that     one    of     the    three

elements     the   government       had    to      prove     was    that    the    crime    of

      3
       The government asserts that, because Cruz did not move for
a directed verdict in the district court, review is for plain
error. United States v. Wallace, 515 F.3d 327, 331-32 (4th Cir.
2008).   We conclude that, under either standard of review, the
convictions may be affirmed.



                                              11
attempted murder in aid of racketeering or the assault with a

dangerous weapon was committed by both Bernardez and Aguilar.

With respect to the latter claim, it is well-established that

“where an indictment charges in the conjunctive several means of

violating a statute, a conviction may be obtained on proof of

only one of the means.”             United States v. Simpson, 228 F.3d

1294, 1300 (11th Cir. 2000).            Therefore, the government could

prove this charge by showing that Cruz knew either Bernardez or

Aguilar Orantes committed the crime and that he acted to help

either of them avoid prosecution afterward.

            Palacios’ testimony, supported by cell phone records

and his recorded conversations with Cruz, established that, both

before and after the October 6, 2008, shootings in Reston, Cruz

was in regular contact with Bernardez and that Cruz talked to

Bernardez on October 7, 2008, the day after the shootings.                  The

number     of   calls     between     Cruz      and   Bernardez    escalated

significantly after October 6.          Moreover, Cruz drove to northern

Virginia to pick up Barrera, who was present at the October 6

shootings, and bring him to a safe house in Richmond.              Cruz then

traveled to northern Virginia a second time to obtain the gun

used in the shootings.       From this evidence, the jury could infer

that Cruz learned that Bernardez had shot Kuk and Beck, even if

he   was   unaware   of   Aguilar    Orantes’   identity   or   role   in   the

shootings.

                                       12
              Cruz focuses on Palacios’ testimony that Cruz told him

that Barrera was the shooter and that Barrera himself claimed to

have been the shooter, arguing that this shows that Cruz did not

knowingly       act    to    help    Bernardez       avoid   prosecution        for    the

shootings.        However, in weighing the evidence, the jury could

reasonably have found it more believable that Cruz learned that

Bernardez was the actual shooter through his many conversations

with Bernardez and his trips to northern Virginia.

              Cruz also argues that the government did not prove

that he knew the gun he sold to Palacios was the gun used in the

October     6    shootings.           Cruz     misrepresents         one    portion     of

Palacios’       testimony      in    making       this   argument.         According    to

Palacios’ testimony, Cruz did not say “he wanted nothing to do

with the gun used in any shooting” or complain “that he had been

deceived in the past when dealing with guns that may have been

used in crimes as it was not his desire to do so.”                              Palacios

testified under cross-examination that Cruz said he wanted clean

guns to take to northern Virginia to exchange for guns that had

been   used     by    MS-13    in    crimes.       Cruz’   only    concern      was   that

someone might sell him a gun that had been used in a crime under

the pretense that it was a clean gun.

              Cruz asserts that his statement to Palacios that one

of   the   guns       Cruz    sold   him     was    the    gun    “used    in   Monday’s

shooting” did not connect the gun to the October 6 shootings.

                                             13
However, Palacios testified that Cruz consistently referred to

the   October        6     shootings       as   “Monday’s       shooting.”           Taken     in

context, it is clear that when Cruz referred to the gun he sold

Palacios on November 1 as the gun used in “Monday’s shooting,”

he meant it was the gun used on October 6, 2008.                              On balance, we

conclude   that          the   evidence         was    sufficient      to     support      Cruz’

convictions as an accessory after the fact.

               Last, Appellants challenge the denial of their Rule 33

motion for a new trial.                We review a district court’s denial of

a new trial motion for a new trial for abuse of discretion.

United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).                                   To

receive    a     new       trial     based      on    newly-discovered            evidence,    a

defendant must show that: (1) the evidence is newly-discovered;

(2) he has been diligent in uncovering it; (3) the evidence is

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

material   to        the    issues    involved;         and   (5)     the   evidence       would

probably produce an acquittal.                        See id.       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       district     court       correctly      determined         that      the

defendants were not entitled to a new trial based on information

from Gordillo Portocarrero, a jailhouse snitch, that allegedly

contradicted          Sergio       Amador’s       testimony         about     a    murder     he

                                                 14
committed, which was part of the government’s evidence of MS-

13’s pattern of racketeering activity.                     Gordillo Portacarrero’s

information   proved      to    be    incorrect      and    thus     did    not   impeach

Amador’s   testimony      at     all.        Thus,    the       information       was    not

material   and    would    not       have   produced       an    acquittal,       even    if

Amador had been the only witness to testify about racketeering

activity by MS-13, which he was not.                      Therefore, the district

court did not abuse its discretion in denying the motion for a

new trial.

           We therefore affirm the convictions and the sentences

imposed by the district court.                   We affirm the district court’s

denial of Appellants’ motion for a new trial.                        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




                                            15
