United States v. Latoya Rose Hourston , 97 F. App'x 53 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2515
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Latoya Rose Hourston, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: April 30, 2004
Filed: May 5, 2004
___________
Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Latoya Rose Hourston challenges the sentence the district court1 imposed after
a jury convicted her of aiding and abetting armed bank robbery, in violation of
18 U.S.C. § 2113(a) and (d), and knowingly and willfully making false material
statements to a Federal Bureau of Investigation agent, in violation of 18 U.S.C.
§ 1001(a)(2). The district court sentenced her to 87 months imprisonment and 3 years
supervised release. On appeal, Ms. Hourston argues the evidence did not support a
1
The Honorable George Howard, Jr., United States District Judge for the
Eastern District of Arkansas.
sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(C), which requires a 5-level
increase if a firearm was brandished or possessed during a robbery. Specifically,
Ms. Hourston argues that she should not have received the enhancement because she
did not possess a gun, nor was she present during the robbery; the jury acquitted her
of a related weapon charge; and there was no credible testimony justifying the
enhancement.
After careful review, we conclude the court did not err in assessing the firearm
enhancement. See United States v. Martinez, 339 F.3d 759, 761 (8th Cir. 2003)
(standard of review). First, according to the trial testimony of Ms. Hourston’s
codefendant, which the sentencing court was entitled to credit, Ms. Hourston obtained
the gun for the robbery; thus it would have been reasonably foreseeable to
Ms. Hourston that the gun would be displayed during the robbery. See U.S.S.G.
§§ 1B1.3(a) (in case of jointly undertaken criminal activity, specific offense
characteristics are determined based on “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity,”
whether or not charged as conspiracy, that occurred during commission of offense of
conviction, or in preparation for offense); United States v. Sarabia-Martinez,
276 F.3d 447, 450 (8th Cir. 2002) (sentencing judge’s determination of witness
credibility is virtually unreviewable on appeal); United States v. Cowan, 196 F.3d
646, 649-50 (6th Cir. 1999) (brandishing-firearm enhancement appropriate where
defendant gave gun to juvenile to commit sting, as it was foreseeable that person
borrowing gun to commit robbery planned to brandish, display, or possess the gun
during the robbery), cert. denied, 529 U.S. 1061 (2000). Second, the jury’s acquittal
of Ms. Hourston on the weapon charge was not dispositive. See United States v.
Watts, 519 U.S. 148, 149, 157 (1997) (sentencing court may consider conduct of
which defendant has been acquitted, so long as that conduct has been proved by
preponderance of evidence); United States v. Wallace, 212 F.3d 1000, 1005 (7th Cir.
2000) (firearm enhancement appropriate where defendant, who was convicted of
-2-
aiding and abetting armed bank robbery, was acquitted of separate charge that he used
firearm during crime of violence).
Accordingly, we affirm.
______________________________
-3-