Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1078
UNITED STATES,
Appellee,
v.
CHARLES WILKERSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Cyr, Senior Circuit Judge,
Lynch and Lipez, Circuit Judges.
William A. Hahn and Hahn & Matkov on brief for appellant.
Michael J. Sullivan, United States Attorney, and Theodore B.
Heinrich, Assistant U.S. Attorney, on brief for appellee.
December 31, 2002
Per Curiam. The government has moved for summary
disposition in this direct criminal appeal filed by Charles
Wilkerson. We grant the motion and summarily affirm
Wilkerson's conviction and sentence.
Although Wilkerson argues that the district court
erred in concluding that it lacked the authority to depart
downward based on Wilkerson's extraordinary childhood and
family circumstances, we need not reach that issue.
Wilkerson's sentence was required by statute to be not less
than ten years' imprisonment, 21 U.S.C. § 841(b)(1)(B), and ten
years is what he received. See U.S.S.G. § 5G1.1(c)(2)
("sentence may be imposed at any point within the applicable
guideline range, provided that the sentence . . . is not less
than any statutorily required minimum sentence"); see also
United States v. Rodriguez, 938 F.2d 319, 320 (1st Cir. 1991)
(vacating 57 month prison sentence because it contravened 60
month statutory minimum sentence and U.S.S.G. § 5G1.1(c)(2)).
There are no circumstances in this case which would allow the
district court to impose a sentence below the statutory
minimum. See United States v. Ahlers, 305 F.3d 54, 59 (1st
Cir. 2002) (discussing 18 U.S.C. §§ 3553(e) and (f)).
Wilkerson also claims that the district court abused
its discretion in denying his second motion for a new trial.
The four pieces of allegedly newly discovered evidence
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proffered by Wilkerson involved cumulative impeachment evidence
of a government witness. In light of the substantial
impeachment evidence already used against that witness and the
strong evidence against Wilkerson, cumulative impeachment
evidence, specifically an undisclosed portion of the witness's
prior grand jury testimony, did not result in any prejudice to
Wilkerson in violation of the Jencks Act, 18 U.S.C. § 3500(b),
and therefore, did not warrant a new trial. See United States
v. Izzi, 613 F.2d 1205, 1213 (1st Cir. 1980). Similarly, that
undisclosed portion of the witness's prior grand jury
testimony, as well as other cumulative impeachment evidence
regarding the dismissal of a prior traffic violation, did not
result in any prejudice to Wilkerson in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and therefore, did not warrant a
new trial. See United States v. Rosario-Peralta, 199 F.3d 552,
559-60 (1st Cir. 1999). Likewise, evidence of the witness's
prior drug involvement and post-trial loan application
constituted cumulative impeachment evidence, and therefore, did
not result in any prejudice to Wilkerson to warrant a new trial
under Fed. R. Crim. P. 33. See United States v. Gonzalez-
Gonzalez, 258 F.3d 16, 20, 23 (1st Cir. 2001).
The judgment of the district court is summarily
affirmed. Loc. R. 27(c).
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