United States v. Eubanks ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4053
CARL A. EUBANKS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-97-110)
Submitted: October 20, 1998
Decided: November 18, 1998
Before NIEMEYER and MICHAEL, Circuit Judges, and HALL,
Senior Circuit Judge.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
G. Wells Dickson, Jr., Charleston, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Brucie H. Hendricks, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Carl A. Eubanks appeals from the district court's judgment con-
victing him of one count of armed bank robbery, 18 U.S.C.A.
§ 2113(a)(d) (West Supp. 1998) (count one), one count of possession
of a firearm during a crime of violence, 18 U.S.C.A.§ 924(c) (West
Supp. 1998) (count two), and one count of possession of a weapon by
a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e) (West Supp. 1998)
(count three). Relying on provisions of 18 U.S.C.§ 3559 (1994), the
court sentenced Eubanks to serve concurrent life terms of imprison-
ment on counts one and two. Eubanks was also sentenced to a life
term on count three to be served consecutively to counts one and two.
Eubanks's attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), certifying that the appeal does not present any
meritorious issues but raising two issues: whether the court erred in
failing to suppress the in-court identification of Eubanks based upon
an unduly suggestive "show-up" identification procedure and whether
the court erred in imposing a life sentence on count two. Eubanks has
filed a pro se supplemental brief raising several issues. We find no
merit to the issues concerning the "show-up" or the issues raised by
Eubanks in his pro se supplemental brief. However, we find that the
court erred in not sentencing Eubanks to a consecutive life term for
the § 924(c) conviction. In addition, the court failed to place on the
record its reasons for sentencing Eubanks to a consecutive life term
for the § 922(g)(1) conviction. Accordingly, we vacate the sentences
and remand for further proceedings consistent with this opinion.
On December 31, 1996, the Lowcountry Savings Bank in Somer-
ville, South Carolina, was robbed at gunpoint by a man wearing a
brown mask. The robber shot a bank employee causing serious injury.
Larry George was in a car near the bank and aware that a robbery was
taking place. He observed Eubanks leaving the bank, removing a
brown mask and getting into the driver's side of a blue car. George
unsuccessfully tried to block Eubanks from driving away from the
area by moving his car directly in front of Eubanks's car. George fol-
lowed Eubanks for some distance before he lost him in traffic. George
described Eubanks and the car he was driving to police. Police soon
arrested Eubanks after finding the abandoned getaway car. Two hours
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after the robbery, George was asked by police to return to the bank
and identify Eubanks. George identified Eubanks as the man he saw
leaving the bank and later identified him at trial.
A court must engage in a two-step inquiry in determining whether
identification testimony is admissible. See United States v. Wilkerson,
84 F.3d 692, 695 (4th Cir. 1996), cert. denied, ___ U.S. ___, 66
U.S.L.W. 3297 (U.S. Oct. 20, 1997) (No. 97-493). First, the defen-
dant must establish that the identification procedure was impermiss-
ibly suggestive. See Manson v. Brathwaite, 432 U.S. 98, 110 (1977).
Second, even if the procedure is found to be unduly suggestive, the
in-court identification is valid if it was reliable. Id. at 114.
We may proceed directly to the reliability of the in-court identifica-
tion without determining whether the defendant has met the threshold
requirement of suggestiveness. See Holdren v. Legursky, 16 F.3d 57,
61-62 (4th Cir. 1994). In evaluating the reliability of the identifica-
tion, we consider: (1) the witness's opportunity to view the perpetra-
tor at the time of the crime; (2) the witness's degree of attention at
the time of the offense; (3) the accuracy of the witness's prior descrip-
tion of the perpetrator; (4) the witness's level of certainty when iden-
tifying the defendant as the perpetrator at the time of confrontation;
and (5) the length of time between the crime and the confrontation.
See Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
We find George's in-court identification reliable. He had a good
opportunity to view Eubanks as he was leaving the bank and getting
into his car. George had a high degree of attention knowing that he
was witnessing the getaway from a bank robbery. His description of
Eubanks was accurate, and he quickly identified Eubanks when he
saw him in the back of a police car.
In his pro se supplemental brief, Eubanks raises several issues
which we find to be without merit. Eubanks was not unfairly preju-
diced by testimony from the robbery victim concerning her son or by
the prosecutor's statement concerning that testimony. The testimony
was only a small part of a three-day trial. It was not a violation of 18
U.S.C. § 201(c) (1994) for the Government to promise a witness it
would advise local authorities of the witness's cooperation in
exchange for truthful testimony. Nor was it error to permit testimony
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from a paramedic with nine years' experience that Eubanks's shoul-
der injury could have come from an automobile accident. Eubanks
has offered no reason to find the court's decision denying his Batson
challenge clearly erroneous.1See United States v. Bynum, 3 F.3d 769,
772 (4th Cir. 1993) (court's factual findings in denying a Batson chal-
lenge reviewed for clear error). Eubanks's Miranda rights were not
violated when a police officer asked him for the name of his next of
kin.2 See, e.g., United States v. Carmona, 873 F.2d 569 (2d Cir. 1989)
(questions not intended to illicit incriminating information do not vio-
late Miranda). The other issues raised by Eubanks are also without
merit.
We now turn out attention to the sentencing issues. Initially, we
find the court did not err in sentencing Eubanks to a life sentence for
the § 924(c) conviction. Under § 3559(c), the court was obligated to
impose the life sentence because Eubanks had two prior violent fel-
ony convictions.
We conclude, however, that the life sentence imposed upon the
§ 924(c) conviction should have run consecutively to any other sen-
tence imposed. Section 924(c)(1) states that "the court shall not place
on probation or suspend the sentence of any person convicted of a
violation of this subsection, nor shall the term of imprisonment
imposed under this subsection run concurrently with any other term
of imprisonment including that imposed for the crime of violence or
drug trafficking crime in which the firearm was used or carried."
The Supreme Court found that § 924(c)'s consecutive-sentencing
provision is unambiguous and removes the district court's discretion
to sentence a defendant who violates § 924(c) to a concurrent sen-
tence. See United States v. Gonzales, 520 U.S. 1, ___, 65 U.S.L.W.
4157, 4159-60 (1997). Thus, we find that Eubanks's§ 924(c) sen-
tence should run consecutively to any other sentence imposed.
We also conclude that the consecutive life sentences imposed
under § 922(g)(1) must be vacated. The USSG§ 5G1.2(c) (1997) pro-
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1 Batson v. Kentucky, 476 U.S. 79 (1986).
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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vides that "[i]f the sentence imposed on the count carrying the highest
statutory maximum is adequate to achieve the total punishment, then
the sentences on all counts shall run concurrently, except to the extent
otherwise required by law." In other words, if the count carrying the
highest statutory maximum permits a sentence at least as high as the
sentence called for by the sentencing table, such a sentence is
imposed on that count and sentences on all other counts are imposed
to run concurrently. See United States v. Mizrachi, 48 F.3d 651, 654
(2d Cir. 1995). The Sentencing Guidelines contemplate concurrent
sentences, unless consecutive sentences are necessary to achieve the
applicable guideline range. See United States v. Morgano, 39 F.3d
1358, 1366 (7th Cir. 1994).
Appellant's statutory life sentence for the robbery conviction was
as high as what was called for by the Sentencing Guidelines. There
is no statutory requirement that Appellant's life sentence for the
weapon possession conviction be served consecutively. Because the
Sentencing Guidelines require that concurrent sentences be imposed
in situations such as the instant case, courts have held that the deci-
sion to have the sentences run consecutively is a departure from the
Sentencing Guidelines. See United States v. Hui , 83 F.3d 592, 593-94
(2d Cir. 1996); United States v. Quinones, 26 F.3d 213, 216 (1st Cir.
1994).
However, courts may impose consecutive sentences despite
§ 5G1.2(c). See 18 U.S.C. § 3584(a) (1994) ("Multiple terms of
imprisonment imposed at the same time run concurrently unless the
court orders or the statute mandates that the terms are to run consecu-
tively."). Similar to other departures from the Sentencing Guidelines,
the reasons for departure must be put on the record. See United States
v. Candelario-Cajero, 134 F.3d 1246, 1249 (5th Cir. 1998); Hui, 83
F.3d at 594; Quinones, 26 F.3d at 216.
In the instant case, there is no discussion in either the presentence
investigation report or the sentencing transcript regarding a consecu-
tive sentence for the weapon possession conviction. Nor did the court
at sentencing explain its reason for imposing the consecutive sen-
tence. Because the court ordered the weapon possession sentence to
be served consecutively to the other two sentences without stating its
reasons on the record, we vacate the sentence and remand for the
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court to clarify whether it intended this sentence to run consecutively
to the other two sentences and, if so, to state its reasons on the record.
Based on the foregoing, we affirm Eubanks's convictions, but
vacate his sentences and remand to the district court for resentencing.
On remand, the district court should order that the life sentence
imposed for the § 924(c) conviction be served consecutively to any
other sentence. In addition, the district court should clarify whether
it intends to sentence Eubanks to a consecutive life sentence for the
§ 922(g)(1) conviction. If so, it should state the reasons for the depar-
ture on the record. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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