Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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,

(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,

(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,

(1st

Cir. 2002) (discussing

(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

-2- 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,

(b),

and therefore, did not warrant a new trial. See United States

v. Izzi,

(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,

(1963), and therefore, did not warrant a

new trial. See United States v. Rosario-Peralta,

(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,

(1st Cir. 2001).

The judgment of the district court is summarily

affirmed. Loc. R. 27(c).

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