United States v. Barnes , 139 F. App'x 490 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4502
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWNDELL BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-02-215)
Submitted: May 31, 2005 Decided: July 13, 2005
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Richard Alan Seligman, Washington, D.C., for Appellant. Allen F.
Loucks, United States Attorney, Michael R. Pauzé, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Shawndell Barnes was convicted of conspiracy to commit
bank robbery, in violation of 18 U.S.C. § 371 (2000) (Count One),
aiding and abetting armed bank robbery, in violation of 21 U.S.C.
§ 2113 (a), (d) (2000) (Count Two), and aiding and abetting the use
of a firearm during a crime of violence, in violation of 21 U.S.C.
§ 924(c) (2000) (Count Three). Barnes was sentenced to 46 months’
imprisonment each on Counts One and Two, to run concurrently, and
84 months’ imprisonment on Count Three, to run consecutively.
Barnes was also sentenced to five years’ supervised release to
follow his imprisonment, and restitution of $15,690, jointly and
severally with his co-defendants—an amount to which Barnes had
stipulated. Barnes appeals his convictions and sentence.
Barnes contends there was insufficient evidence to
support his convictions. We review the district court's decision
to deny a motion for judgment of acquittal de novo. United
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If the
motion was based on insufficiency of the evidence, the verdict must
be sustained if there is substantial evidence, taking the view most
favorable to the government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). “Substantial evidence is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a
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reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc).
In order to prove Barnes aided and abetted armed bank
robbery, the government had to establish that Barnes knew or
reasonably should have foreseen that his confederates would use a
dangerous weapon. United States v. McCaskill, 676 F.2d 995, 998
(4th Cir. 1982). The government was not required to prove Barnes
participated in every stage of the crime, only that he participated
at some stage with knowledge of the likely result and intent to
bring about that result. United States v. Arrington, 719 F.2d 701,
705 (4th Cir. 1983).
Viewing the evidence in the light most favorable to the
government, we conclude there was sufficient evidence from which a
jury could reasonably infer Barnes actively assisted in the bank
robbery, had constructive knowledge a gun would be used in the
commission of the robbery, and had actual knowledge that a gun was
used during the bank robbery. Accordingly, we affirm Barnes’
convictions.
Barnes also asserts that his Sixth Amendment right to
confront and cross-examine witnesses was violated when the district
court excluded a transcript of trial testimony from a prior bank
robbery involving Barnes’ co-defendant, David Smith, but not
involving Barnes, for the purpose of impeaching Smith, who
testified against Barnes. The district court has discretion
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generally to conduct a trial, including the presentation of
evidence, in whatever manner the court deems appropriate, and the
district court’s evidentiary rulings are entitled to substantial
deference and will not be reversed absent a clear abuse of
discretion. See United States v. Leftenant, 341 F.3d 338, 342 (4th
Cir. 2003), cert. denied, 124 S. Ct. 1183 (2004); Sasaki v. Class,
92 F.3d 232, 241 (4th Cir. 1996); United States v. Moore, 27 F.3d
969, 974 (4th Cir. 1994). We find Barnes has failed to set forth
any evidence to establish abuse of the district court’s discretion
in excluding the transcript as collateral, irrelevant, non-
probative, and untrustworthy.
Barnes also appeals his sentence, arguing the district court
erred in applying the federal sentencing guidelines as mandatory
and enhanced his sentence based on facts found by the court and not
by the jury in violation of United States v. Booker, 125 S. Ct. 738(2005). Because Barnes did not object to his sentence in the
district court on these grounds, our review is for plain error.
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, Barnes must establish that error occurred,
that it was plain, and that it affected his substantial rights.
Id. at 547-48. If a defendant establishes these requirements, the
Court’s “discretion is appropriately exercised only when failure to
do so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
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fairness, integrity or public reputation of judicial proceedings.”
Id. at 555 (internal quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750. The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C.A.
§§ 3553(b)(1), 3742(e) (West 2000 & Supp. 2004), thereby making the
guidelines advisory. Hughes, 401 F.3d at 546.
We find Barnes did not receive any enhancements based on
facts not found by a jury or admitted to by Barnes. Barnes
received a two-level enhancement for taking money from a financial
institution pursuant to U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(1) (2002), based on facts found by the jury or admitted
to by Barnes in stipulations at trial. Barnes also stipulated that
the amount of the proceeds from the bank robbery was $15,690, and
thus the one-level enhancement pursuant to USSG § 2B3.1(b)(7)(B)
for an offense involving more than $10,000 but less than $50,000
was not based on judicial fact-finding. Therefore, we find Barnes’
sentence does not exceed the maximum sentence authorized by the
facts admitted to by Barnes or found by the jury alone, and does
not violate his Sixth Amendment rights.
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However, in United States v. White, ___ F.3d ___, 2005 WL
949326 (4th Cir. Apr. 26, 2005), we recognized that a sentence that
does not violate the Sixth Amendment may involve cognizable plain
error when it appears the district court would have imposed a
lesser sentence if it had treated the guidelines as advisory.
Here, although the court’s comments at sentencing are not
conclusive, they can be interpreted to permit the possibility that
a lower sentence might have been imposed on Barnes had the court
not been under the now-erroneous understanding that application of
the guidelines was mandatory.* Out of deference to the district
court, then, we vacate Barnes’ sentence and remand the case for
resentencing consistent with Booker.
Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. See United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005) (applying Booker on plain error review). The court
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Reed’s sentencing. See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
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should consider this sentencing range along with the other factors
described in 18 U.S.C. 3553(a) (2000), and then impose a sentence.
Id. If that sentence falls outside the Guidelines range, the court
should explain its reasons for the departure as required by 18
U.S.C. 3553(c)(2) (2000). Id. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 546-47.
In sum, we affirm the convictions, but vacate Barnes’
sentence and remand for resentencing in accordance with Booker. 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.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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