United States v. Poole, Joseph , 155 F. App'x 904 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
fiam’teh étates (Enurt of gppealg
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 14, 2005
Decided November 28, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05—2132
UNITED STATES OF AMERICA, Appeal from the United States District
PlaintiffiAppeIIee, Court for the Northern District of
Illinois, Western Division
V.
No. 04 CR 50003
JOSEPH H. POOLE,
Defendant-Appellant. Philip G. Reinhard,
Judge.
ORDER
A jury found Joseph Poole guilty of armed bank robbery, 18 U.S.C.
§ 2113(a), (d); using and carrying a firearm during that robbery, id. § 924(c)(1)(A);
and aiding and abetting a second armed bank robbery, id. § 2113(a), (d). The
district court deemed the sentencing guidelines advisory and, after assigning Poole
a total offense level of 31 for the two bank robberies and a criminal history category
of IV, imposed concurrent sentences of 188 months on the robberies, and a
mandatory consecutive sentence of 84 months on the § 924(c) count. Appointed
counsel filed a notice of appeal, but now seeks to withdraw under Anders V.
California, 386 US. 738 (1967), because he cannot find a nonfrivolous issue to
present. Counsel’s Anders brief is facially adequate, and Poole has not responded to
No. 05-2132 Page 2
our invitation under Circuit Rule 51(b) to comment on counsel’s submission. Thus,
our review is limited to those potential issues identified in counsel’s brief. See
United States V. Tabb, 125 F.8d 583, 584 (7th Cir. 1997).
We first consider whether Poole could challenge his three convictions based
on the sufficiency of the evidence. We review the evidence of a defendant’s guilt in
the light most favorable to the government and will uphold a jury’s verdict if “any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson V, Virginia, 443 US. 307, 319 (1979). To convict Poole
of armed bank robbery as a principal, the government was required to show that he
took or tried to take the institution’s funds by force or intimidation, and that he
used a dangerous weapon to assault or jeopardize the life of another during the
robbery. See 18 U.S.C. § 2113(a), ((1); United States V. Robinson, 161 F.3d 463, 471
(7 th Cir. 1998). To convict Poole of the same crime under a theory of aiding and
abetting, the government was required to prove “not only that [he] knew a bank
robbery would occur, but also that a weapon would likely be used in the crime.” See
United States V. Woods, 148 F.3d 843, 846 (7th Cir. 1998). Finally, to convict Poole
under § 924(c) as charged in the indictment, the government had to establish that
he used or carried a gun during and in connection with the first robbery. See
United States V. Jones, 418 F.3d 726, 729 (7th Cir. 2005); United States V.
SandOVal, 347 F.3d 627, 633 (7th Cir. 2003).
We agree with counsel that in this case an argument about the sufficiency of
the evidence would be frivolous. Regarding the first robbery and Poole’s use of a
gun during that robbery, a bank teller testified that Poole displayed a gun and took
money from her. An associate of Poole’s, who was not involved in the robbery but
was convicted of nine other robberies, testified that Poole contacted him shortly
after the crime and related details of the robbery, including his attempts to use the
money that had been stained by a dye packet by spending it in vending machines.
The government also presented the testimony of the merchants who recovered the
dye-stained money from the machines they operated, corroborating the testimony of
Poole’s associate. As to the second robbery, two bank employees testified that they
believed Poole was one of the three men who participated in the robbery. Poole’s
accomplice, who pleaded guilty, testified that Poole helped plan the robbery and
drove one of the getaway cars. Finally, the former girlfriend of Poole’s accomplice
testified to seeing Poole and the other two robbers with large sums of money after
the robbery, corroborating the accomplice’s testimony. These witnesses, among
many others, prevent Poole from arguing that the record is devoid of evidence to
support the jury’s finding of guilt, see Hayes V. Battaglia, 403 F.3d 935, 938 (7th
Cir. 2005) (testimony of single eyewitness is sufficient to establish guilt); United
States V. Williams, 298 F.3d 688, 692 (7th Cir. 2002) (conspirator’s testimony
sufficient to prove that conspiracy existed).
No. 05-2132 Page 3
We next consider whether Poole could challenge the district court’s denial of
his motion to sever the trial of the two robberies, which were committed more than
a year apart. Our review would be for abuse of discretion. See United States V.
Jenkins, 419 F.3d 614, 620 (7th. Cir. 2005). Federal Rule of Criminal Procedure
8(a) permits the joinder of multiple offenses “if the offenses charged . . . are of the
same or similar character or are based on the same act or transaction or on two
more actions or transactions connected together or constituting parts of a common
scheme or plan.” Fed. R. Crim. P. 8(a). Though Poole’s armed robbery charges were
properly joined under Rule 8, see, e.g., United States V. Rollins, 301 F.3d 511, 517 -
18 (7th Cir. 2002), he argued prior to trial that the two counts should be severed
under Federal Rule of Criminal Procedure 14, which permits a district court to
sever properly joined charges if a single trial would prejudice the defendant. See
Fed. R. Crim. P. 14(a). On appeal, “a defendant must demonstrate that the denial
of severance caused him ‘actual prejudice’ that deprived him of his right to a fair
trial; it is insufficient that separate trials would have given a defendant a better
opportunity for an acquittal.” Rollins, 301 F.3d at 518; see also United States V.
Souffiront, 338 F.3d 809, 831 (7th Cir. 2003). But, as counsel observes, Poole
cannot. As counsel explains, Poole’s trial took only four days. The evidence,
including eyewitness and accomplice testimony, was presented in a chronological
fashion and was not complex. Poole, then, was not prejudiced by the joinder of his
charges into a single trial; to argue otherwise would be frivolous.
Finally, we consider whether any grounds exist to challenge Poole’s prison
terms, which the district court imposed under an advisory guideline regime in
accordance with the Supreme Court’s decision in United States V. Booker, 125 S. Ct.
738 (2005). We will uphold a sentence that is reasonable, id. at 765; United States
V. Tedder, 403 F.3d 836, 844 (7th Cir. 2005), and any sentence that is within a
properly calculated guideline range is presumptively reasonable, United States V.
Mylrytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Counsel first questions whether Poole might argue that the district court
erred by increasing his offense level under U.S.S.G. § 3C1.1 for obstruction of
justice, based only on a preponderance of the evidence. But the import of Bookeris
that sentencing facts under the now-advisory guidelines regime “do not determine
the actual sentence” imposed and thus do not need to be proved beyond a reasonable
doubt. United States V. Dean, 414 F.3d 725, 730 (7th Cir. 2005). Next counsel asks
whether Poole could challenge the reasonableness of his sentence. The district
court, after taking into consideration the factors in 18 U.S.C. § 3553(a), calculated
Poole’s advisory guideline range (which counsel concedes is correct) and sentenced
him to a total of 272 months. It would be frivolous for Poole to argue that his
sentence for the § 924(c) count, which is the minimum term required by
No. 05-2132 v Page 4
§ 924(c)(1)(A)(ii), is unreasonable. See United States V. Henry, 408 F.3d 930, 935
(7th Cir. 2005); United States V. Lee, 399 F.3d 864, 866 (7th Cir. 2005). And his
concurrent terms for the robberies are within his guideline range and thus
presumptively reasonable. See Mykytjuk, 415 F.3d at 608. Counsel is unable to
construct a plausible argument to rebut the presumption of reasonableness, and we
similarly see no basis in the record to doubt the reasonableness of the robbery
sentences. We accordingly agree with counsel that any sentencing challenge would
be frivolous.
We therefore GRANT counsel’s motion to Withdraw and DISMISS the appeal.