United States v. Atkinson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51015
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GERALD WAYNE ATKINSON
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-103-1-FB
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August 7, 2000
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Gerald Wayne Atkinson (Atkinson) appeals his conviction
after trial by jury of one count of attempted bank robbery and of
one count of bank robbery. Atkinson argues that the evidence was
insufficient to prove intimidation, an element of bank robbery
under 18 U.S.C. § 2113(a).
Under the concurrent sentence doctrine, the existence of one
valid sentence makes unnecessary the review of other sentences
that run concurrently with it. See United States v. Stovall,
825 F.2d 817, 824 (5th Cir. 1987). Applying the doctrine in a
*
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this opinion should not be published and is not precedent except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.
No. 99-51015
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manner that removes the adverse collateral consequences of the
sentence, we have adopted the policy of vacating the unreviewed
sentence and suspending imposition of that sentence. Id. This
doctrine does not apply when the defendant's liability for a
special assessment depends on the validity of each of the
convictions. See Ray v. United States, 481 U.S. 736, 737 (1987).
The district court sentenced Atkinson to concurrent 57-month
terms of imprisonment and three-year terms of supervised release
for each of the two counts on which he was convicted. It only
imposed a $100.00 special assessment with respect to count two.
As Atkinson's monetary sanctions do not depend on the validity of
each count, we review the sufficiency of the evidence as to count
two only and vacate the sentence imposed under count one. The
unreviewed conviction in no way alters the jury's verdict or the
conviction itself. See United States v. Montemayor, 703 F.2d
109, 116 (5th Cir. 1983). The effect of this judicial action is
to suspend imposition of the sentence. Id."In evaluating the sufficiency of the evidence, this court
must determine whether a rational jury could have found evidence
establishing intimidation beyond a reasonable doubt." United
States v. Baker, 17 F.3d 94, 96 (5th Cir. 1994). We consider the
evidence in the light most favorable to the verdict, accepting
all reasonable inferences that support the jury's verdict. Id."As used in § 2113(a), the term 'intimidation' means 'to
make fearful or to put into fear.'" United States v. McCarty, 36
F.3d 1349, 1357 (5th Cir. 1994). Proof of an express verbal
threat, a threatening display of a weapon, or actual fear is not
No. 99-51015
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required. Id. The Government must show only that an ordinary
person in the teller's position would feel a threat of bodily
harm from the defendant's acts. Id.The facts of this case are similar to the facts of McCarty.
In McCarty, a long-haired robber exhibited a “foreboding
presence.” Id. at 1357, 1359. He wore a fake beard, wig, dark
clothing, gloves, and a cap. Id. at 1357. He carried a black
bag. Id. The robber presented the teller with a note that said,
“Be calm. This is a robbery.” Id. The robber did not display a
gun or speak to the teller. Id. at 1357-58. The teller did not
testify directly that she was afraid, but from her testimony the
jury could “glean” her fear. Id. Although we reviewed this case
under the plain error standard of review, we noted the evidence
satisfied the sufficiency of the evidence standard because “a
rational jury could have found, beyond a reasonable doubt, that
an ordinary person in [the teller’s] position would feel a threat
of bodily harm from [the robber’s] acts.” Id. at 1359.
Similarly, in this case, Atkinson presented the teller with
a note that immediately described his confrontation with her as a
“hold-up.” The note demanded that she fill his backpack with
cash, hand over larger denominations first, and avoid devices
that might foil his robbery. The note also told her to hurry.
The teller testified that although Atkinson did not exert or
expressly threaten physical force or violence, she feared for her
safety and the safety of others, noting that she was concerned
that Atkinson might have a gun. Atkinson’s physical appearance
was foreboding. He was dirty and unshaven, and he wore a heavy
No. 99-51015
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jacket in warm weather that could have concealed a gun.
Accordingly, the evidence introduced with respect to count two of
the indictment was sufficient to prove intimidation.
Conviction on count two AFFIRMED; conviction on count one
VACATED under concurrent sentence doctrine.