UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4856

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT EARL LOWRY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Elizabeth City. Terrence W. Boyle,

Chief District Judge. (CR-02-13-BO)

Submitted: October 1, 2004 Decided: November 22, 2004

Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kelly Latham Greene, STUBBS & PERDUE, PA, New Bern, North Carolina,

for Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Assistant United States Attorney, Raleigh, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

Vacated by Supreme Court, March 28, 2005
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PER CURIAM:

Robert Earl Lowry appeals his convictions and 228-month

sentence on drug and firearms offenses and the order of the

district court denying his motion for a new trial filed pursuant to

Fed. R. Crim. P. 33. Finding no error, we affirm. 

 Lowry first claims that the district court erred in its

calculation of relevant conduct for purposes of establishing his

base offense level under U.S. Sentencing Guidelines Manual

§ 2D1.1(c) (2002). A district court’s factual finding concerning

the amount of drugs attributable to a defendant is reviewed for

clear error. United States v. Randall, 171 F.3d 195, 210 (4th Cir.

1999). The district court’s finding was based on Lowry’s own

admissions to an investigator regarding his distribution of crack

cocaine. We conclude that this statement against interest, when

combined with other corroborating facts, established a sufficient

indicia of reliability to support the court’s finding. See United

States v. Miller, 925 F.2d 695, 699 (4th Cir. 1991) (“The

informant’s interest in obtaining leniency created a strong motive

to supply accurate information.”).

In his second claim, Lowry asserts that the district

court erred in denying his Rule 33 motion for a new trial. Lowry

claims that a form he signed while attempting to cooperate with
*

See Brady v. Maryland, 373 U.S. 83 (1963) (establishing duty

of prosecution to disclose exculpatory evidence).

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North Carolina officials is new evidence and amounts to a Brady*

violation. We review this claim for an abuse of discretion.

United States v. Huggins, 191 F.3d 532, 536 (4th Cir. 1999). 

In order to receive a new trial under Rule 33 based on

newly discovered evidence, a defendant must demonstrate that:

(a) the evidence is newly discovered; (b) he has been diligent in

uncovering it; (c) it is not cumulative or impeaching; (d) it is

material to the issues involved; and (e) it would probably produce

an acquittal. See United States v. Fulcher, 250 F.3d 244, 249 (4th

Cir. 2001). Lowry cannot demonstrate that the evidence was newly

discovered because he was aware of it prior to trial. 

Likewise, Lowry fails with respect to his Brady claim.

Such a violation may warrant a new trial if the prosecutor

withholds material evidence favorable to the defense, and there is

a “reasonable probability” that with the favorable evidence the

defendant would have obtained a different result at trial. See

Kyles v. Whitley, 514 U.S. 419, 432-33 (1995). Our review of the

transcript discloses no reasonable probability that Lowry would

have obtained a different result had he been provided with a copy

of the disputed form by the Government. 

Lowry also claims that the district court erred by

denying his motion for an instruction on a defense of entrapment.
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A district court’s refusal to give an entrapment instruction is a

legal issue that we review de novo. See United States v. Phan, 121

F.3d 149, 154 (4th Cir. 1997). To be entitled to a requested jury

instruction, a defendant must establish a sufficient evidentiary

foundation to support the instruction. See United States v. Lewis,

53 F.3d 29, 33 n.8 (4th Cir. 1995). The transcript again fails to

support Lowry’s claimed position. There is simply no plausible

scenario associated with the evidence to support an entrapment

defense. Accordingly, we deny this claim. 

Finally, Lowry has filed a motion to file a supplemental

brief addressing the issues raised by the Supreme Court’s recent

ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004). We grant

the motion and deem it to provide the supplemental argument

regarding the effects of Blakely. This court has considered the

applicability of Blakely to the federal sentencing guidelines and

has concluded that their application by a district court comports

with the requirements of the Sixth Amendment. See United States v.

Hammoud, ___ F.3d ___, 2004 WL 2005622, at *28 (4th Cir. Sept. 8,

2004) (No. 03-4253) (en banc); United States v. Hammoud, 378 F.3d

426 (4th Cir. 2004) (order), petition for cert. filed, ___ U.S.L.W.

___ (U.S. Aug. 6, 2004) (No. 04-193). Accordingly, we find no

error in Lowry’s sentence.

We affirm the judgment of the district court. We

dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and

argument would not aid the decisional process. 

AFFIRMED