United States v. DeCarlo

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 13, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60315
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES ANGELO DECARLO, doing business as
Charles Van Wagner,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:02-CR-37-1
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Charles Angelo DeCarlo, convicted of violating 18 U.S.C.
§§ 922(g)(1) and 924(e) by possessing a firearm as a convicted
felon, appeals from the district court’s denial of his motion for
new trial based upon newly-discovered evidence pursuant to FED.
R. CRIM. P. 33. DeCarlo also appeals the enhancement of his
sentence pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.

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No. 03-60315
-2-
DeCarlo has failed to prove that the Government either
withheld the newly-discovered impeachment material from him prior
to his trial or knowingly used perjured testimony at his trial.
See East v. Scott, 55 F.3d 996, 1003-05 (5th Cir. 1995).
Moreover, DeCarlo’s own testimony before the jury was sufficient
to establish that he constructively possessed the firearm in
violation of 18 U.S.C. § 922(g). See United States v. Mergerson,
4 F.3d 337, 348-49 (5th Cir. 1993). Thus, DeCarlo has failed to
show that the newly-discovered evidence is material. See United
States v. MMR Corp., 954 F.2d 1040, 1047 (5th Cir. 1992). In
addition, because the new evidence is cumulative and impeaching,
its discovery does not warrant a new trial. See id.
The crime of burglary for which DeCarlo was convicted under
Utah Criminal Code § 76-6-202 substantially corresponds to the
definition of generic burglary as required by Taylor v. United
States, 495 U.S. 575, 599 (1990), for sentencing enhancement
under 18 U.S.C. § 924(e). See Taylor, 495 U.S. at 599. Thus,
the Government’s submission of proof of the text of the Utah
state statute is sufficient proof that DeCarlo’s prior burglary
offense meets the definition of the violent felony of burglary
for enhancement purposes under 18 U.S.C. § 924(e). See id.
AFFIRMED.

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