     08-4914-cr
     United States v. Figueroa
                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 28th day of April two thousand eleven.
 4
 5   PRESENT:           ROBERT D. SACK,
 6                      DEBRA ANN LIVINGSTON,
 7                      GERARD E. LYNCH,
 8                                      Circuit Judges.
 9
10
11   UNITED STATES OF AMERICA,
12             Appellee,
13
14            -v.-                                        No. 08-4914-cr
15
16   DIEGO C. FIGUEROA,
17               Defendant-Appellant.
18
19
20                                  ROBERT G. SMITH, Assistant Federal Public Defender, Western
21                                  District of New York (Jay S. Ovsiovitch, Of Counsel, on the brief),
22                                  Rochester, New York, for Defendant-Appellant.
23
24                                  MONICA RICHARDS, Assistant United States Attorney (Stephan
25                                  J. Baczynski, Assistant United States Attorney, on the brief), for
26                                  William J. Hochul, Jr., United States Attorney, Western District of
27                                  New York, Buffalo, New York, for Appellee.
28
29
30            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

31   DECREED that the judgment of the district court be AFFIRMED.
 1          Defendant-Appellant Diego Figueroa (“Figueroa”) appeals from a judgment of the United

 2   States District Court for the Western District of New York (Siragusa, J.), filed October 2, 2008,

 3   convicting him, after trial by jury, of possession with intent to distribute cocaine, in violation of 21

 4   U.S.C. §§ 841(a)(1) and 841(b)(1)(C); possession of heroin, in violation of 21 U.S.C. § 844(a);

 5   possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and

 6   924(a)(2); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

 7   U.S.C. § 924(c)(1), and sentencing him to 240 months’ imprisonment, six years’ supervised release,

 8   and special assessments totaling $400. We assume the parties’ familiarity with the underlying facts,

 9   procedural history of the case, and issues on appeal.

10                                     I. Newly Discovered Evidence

11          First, Figueroa asserts that the district court abused its discretion in denying his motion for

12   a new trial, brought pursuant to Federal Rule of Criminal Procedure 33, based on newly discovered

13   evidence of professional misconduct by the Monroe County Public Safety Laboratory forensic

14   chemist, Linda Teague (“Teague”), who performed testing on the narcotics seized from Figueroa

15   and who testified at his trial. Federal Rule of Criminal Procedure 33(a) provides that “the court may

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

17   court’s denial of such a motion for abuse of discretion, mindful that “[t]he grant of a Rule 33 motion

18   requires ‘a real concern that an innocent person may have been convicted.’” United States v. Parkes,

19   497 F.3d 220, 232 (2d Cir. 2007) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.

20   2001)); see also United States v. Canova, 412 F.3d 331, 349 (2d Cir. 2005) (noting that “[t]he

21   ultimate test is whether letting a guilty verdict stand would be a manifest injustice” (internal

22   quotation marks omitted)). Since “motions for a new trial are disfavored in this Circuit,” United


                                                        2
 1   States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995), we have emphasized that a motion for a new

 2   trial based on newly discovered evidence should be granted “only in the most extraordinary

 3   circumstances,” United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993) (internal quotation marks

 4   omitted; emphasis in original).

 5          When presented with a motion for a new trial based on newly discovered evidence,

 6                  [i]n the exercise of his discretion the trial judge must determine
 7                  whether there is [a] showing: (1) that the evidence could not with due
 8                  diligence have been discovered until after the trial; (2) that the
 9                  evidence is material to the factual issues at the trial and not merely
10                  cumulative and impeaching; and (3) that the evidence would probably
11                  produce a different result in the event of a new trial.
12
13   United States v. Zane, 507 F.2d 346, 347 (2d Cir. 1974). Moreover, “[t]he trial court has broad

14   discretion to decide Rule 33 motions based upon its evaluation of the proof produced . . . because,

15   having presided over the trial, it is in a better position to decide what effect the newly discovered

16   materials might have had on the jury.” Gambino, 59 F.3d at 364 (internal quotation marks and

17   citations omitted).

18          Here, the evidence of Teague’s professional misconduct would have done no more than

19   impeach her credibility. There is no evidence that Teague committed errors in her analysis of the

20   narcotics seized from Figueroa, or that she committed perjury at Figueroa’s trial. To the contrary,

21   any evidence of her misconduct in other cases might, at best, have been used to undermine her

22   testimony. In light of the evidence presented at his trial, Figueroa has made an insufficient showing

23   here that “the evidence is not merely cumulative or impeaching,” United States v. Owen, 500 F.3d

24   83, 88 (2d Cir. 2007), or that the “admission of the evidence would probably lead to an acquittal”

25   in a new trial, United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980) (emphasis added); see also

26   Gambino, 59 F.3d at 364 (“[T]he standard for granting such a motion is strict; that is, newly

                                                      3
 1   discovered evidence must be of a sort that could, if believed, change the verdict.”). Accordingly,

 2   the district court did not abuse its discretion in denying Figueroa’s new trial motion.

 3                       II. Substantive Reasonableness of Figueroa’s Sentence

 4          Next, Figueroa contends that his sentence is substantively unreasonable. We review

 5   sentences for reasonableness, see United States v. Booker, 543 U.S. 220, 261-62 (2005), a standard

 6   akin to abuse of discretion, United States v. Cavera, 550 F.3d 180, 187-89 (2d Cir. 2008) (en banc).

 7   We have emphasized that “[a] sentencing judge has very wide latitude to decide the proper degree

 8   of punishment for an individual offender and a particular crime.” Id. at 188. Thus, “[t]he fact that

 9   [an] appellate court might reasonably have concluded that a different sentence was appropriate is

10   insufficient to justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007).

11   Rather, we will consider only “whether the sentence imposed falls within the broad range that can

12   be considered reasonable under the totality of the circumstances.” United States v. Jones, 531 F.3d

13   163, 174 (2d Cir. 2008). This review is intended only “to provide a backstop against sentences that

14   are shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States

15   v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010) (internal quotation marks omitted). Accordingly, if the

16   resulting sentence is reasonable, “we will not second guess the weight (or lack thereof) that the

17   [sentencing] judge accorded to a given factor or to a specific argument made pursuant to that factor.”

18   United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006).

19          The district court sentenced Figueroa to a total term of imprisonment of 240 months, a

20   substantial downward variance from the advisory Guidelines range of 360 months to life.

21   Nevertheless, Figueroa contends that the district court abused its discretion in failing to sentence him

22   to the mandatory minimum sentence of five years and three months’ imprisonment, arguing that any


                                                        4
 1   greater sentence, given Figueroa’s health and life expectancy, was “effectively a life sentence.” The

 2   record, however, clearly demonstrates that the district court conscientiously took Figueroa’s health

 3   into consideration, resulting in a sentence well below the bottom of the Guidelines range. The court

 4   expressly noted that it had considered Figueroa’s “individual circumstances” and his “physical

 5   condition,” meriting a downward variance, but declined to depart further based on its assessment

 6   of, inter alia, the seriousness of Figueroa’s offense and his history of recidivism. We have recently

 7   observed that it is “difficult to find that a below-Guidelines sentence is unreasonable,” United States

 8   v. Perez-Frias, — F.3d —, 2011 WL 1184390, at *3 (2d Cir. Mar. 31, 2011), given that “in the

 9   overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range

10   of sentences that would be reasonable in the particular circumstances,” Fernandez, 443 F.3d at 27.

11   On the record presented, we cannot conclude that Figueroa’s sentence is “shockingly high,

12   shockingly low, or otherwise unsupportable as a matter of law,” Dorvee, 616 F.3d at 183 (internal

13   quotation marks omitted), and we will not second-guess the district court’s exercise of its discretion,

14   see Fernandez, 443 F.3d at 34.

15          We have considered all of Defendant-Appellant’s remaining arguments and find them to be

16   without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

17
18                                                          FOR THE COURT:
19                                                          Catherine O’Hagan Wolfe, Clerk
20
21




                                                       5
