United States v. McFadden ( 1997 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                       No. 96-4710
    GLENN WADE MCFADDEN,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Claude M. Hilton, District Judge.
    (CR-96-91-A)
    Submitted: May 29, 1997
    Decided: June 17, 1997
    Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Charles G. Aschmann, Jr., ASCHMANN & ASCHMANN, Alexan-
    dria, Virginia, for Appellant. Helen F. Fahey, United States Attorney,
    Robert A. Spencer, Assistant United States Attorney, Alexandria, Vir-
    ginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Glenn Wade McFadden was convicted by a jury of three counts of
    bank robbery, 
    18 U.S.C. § 2113
    (a) (1994), and one count of conspir-
    acy to commit bank robbery, 
    18 U.S.C. § 371
     (1994), and was subse-
    quently sentenced to 168 months imprisonment. On appeal,
    McFadden challenges the sufficiency of the evidence and the district
    court's denial of a downward departure during sentencing. Finding no
    error, we affirm.
    At trial, Richard Day testified that over a period of two months he
    and McFadden robbed or attempted to rob several banks. He stated
    that typically, McFadden would drive and case the bank. Day would
    then proceed into the bank, present the demand note, and take the
    money. They would then divide the profits. Furthermore, at least two
    bank employees identified McFadden as the individual casing the
    banks just before the subject robberies. The Government also intro-
    duced into evidence bank surveillance photographs of McFadden
    taken during one of the subject robberies. McFadden was appre-
    hended on the day of the last two robberies after a high-speed chase.
    At this time, police discovered a demand note, the same clothing that
    appeared in the bank surveillance photographs, dye-stained currency
    and clothes, and bait bills in his car. Lastly, McFadden after waiving
    his rights, admitted to the FBI that he robbed a series of banks with
    Day.
    We must sustain a jury's verdict if there is substantial evidence to
    support it, taking the view most favorable to the Government. See
    Glasser v. United States, 
    315 U.S. 60
    , 80 (1942). This Court does not
    weigh the evidence or review the credibility of witnesses in resolving
    issues of substantial evidence. United States v. Saunders, 
    886 F.2d 56
    ,
    60 (4th Cir. 1989).
    To support a conviction of bank robbery under § 2113(a), the Gov-
    ernment must prove that the defendant took, from a person or in the
    presence of another, money belonging to or in the custody of, a feder-
    ally insured savings and loan or bank, by force or intimidation. 
    18 U.S.C. § 2113
    (a). To sustain a conspiracy conviction, the government
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    must prove: (1) the existence of a conspiracy, (2) that the defendant
    knew of the conspiracy, and (3) that the defendant voluntarily became
    a part of the conspiracy. United States v. Burgos, 
    94 F.3d 849
    , 857
    (4th Cir. 1996) (en banc). Knowledge and participation in the conspir-
    acy may be proved by circumstantial evidence. Id.; see also United
    States v. Meredith, 
    824 F.2d 1418
    , 1428 (4th Cir. 1987). Viewing the
    evidence in the light most favorable to the Government, we find it
    sufficient for a rational jury to find defendant guilty beyond a reason-
    able doubt of both crimes.
    McFadden also maintains that the district court erred in denying
    him a downward departure during sentencing on the grounds that his
    co-conspirator received a lighter sentence and because his criminal
    history category was overstated. It is well established that a defendant
    may not challenge a sentence merely because of the disparity between
    his sentence and a co-conspirator's sentence. United States v. Ellis,
    
    975 F.2d 1061
    , 1065-66 (4th Cir. 1992) (absent proof of actual pro-
    secutorial misconduct, no downward departure based on disparity of
    sentences among co-defendants). Furthermore, the district court's
    refusal to depart below the guideline range is not reviewable on
    appeal unless the court mistakenly believes it lacks authority to
    depart. United States v. Dorsey, 
    61 F.3d 260
    , 263 (4th Cir. 1995).
    Here, there is no indication from the record that the district court mis-
    takenly believed that it did not have the ability to depart. We therefore
    do not review the court's refusal to depart downward.
    Accordingly, we affirm McFadden's convictions and sentence. We
    dispense with oral argument because the facts and legal contentions
    are adequately presented in the materials before the court and argu-
    ment would not aid the decisional process.
    AFFIRMED
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