United States v. Gary

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4996
JOHN BRANDON GARY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-199-MU)
Submitted: December 24, 2003
Decided: January 22, 2004
Before WIDENER, MICHAEL, MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Noell P. Tin, Charlotte, North Carolina, for Appellant. Robert J. Con-
rad, Jr., United States Attorney, Robert J. Gleason, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GARY
OPINION
PER CURIAM:
A jury convicted John Brandon Gary on five counts of bank rob-
bery, 18 U.S.C. § 2113(a) (2000), five counts of armed bank robbery,
18 U.S.C. § 2113(d) (2000), and five counts of using, carrying, and
brandishing a firearm during and in relation to a crime of violence,
18 U.S.C. § 924(c)(1) (2000). The district court imposed concurrent
sentences of eighty-seven months on each count of bank robbery and
armed bank robbery, a consecutive seven-year sentence on the first
§ 924(c) count, and twenty-five-year sentences on the remaining four
§ 924(c) counts, to run consecutively to each other and the other
counts of conviction, for a total imprisonment of 1371 months. Gary
maintains on appeal that the district court erred in admitting latent fin-
gerprint identification evidence at trial.
The district court’s decision to admit expert testimony is reviewed
for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139
(1997); United States v. Powers, 59 F.3d 1460, 1470-71 (4th Cir.
1995). In United States v. Crisp, 324 F.3d 261 (4th Cir.), cert. denied,
124 S. Ct. 220 (2003), we noted that fingerprint evidence has ably
withstood the test of time and found such evidence to be reliable and
properly admissible, at least at a general level. Id. at 269 (noting that
while standards for matches may differ, all testers use the same tech-
nique). Furthermore, we stated that "a trial judge need not expend
scarce judicial resources reexamining a familiar form of expertise
every time opinion evidence is offered." Id. at 268. We concluded that
fingerprint analysis is one of those forms of evidence where the reli-
ability of the science and its general acceptance is apparent without
a full reexamination of the science. Id. at 268-69. In light of Crisp’s
recent approval of the methodology used by the forensics expert in
this case, and Gary’s failure to provide any persuasive evidence of the
expert’s lack of qualifications, we find no abuse of discretion in
admitting the expert’s testimony concerning the latent fingerprint
identification evidence.
Although Gary has not raised a multiplicity claim on appeal, the
judgment makes clear that the district court convicted Gary of both
bank robbery, 18 U.S.C. § 2113(a), and armed bank robbery, 18
UNITED STATES v. GARY 3
U.S.C. § 2113(d), for each of the five robberies he was charged with
committing. On these ten counts, the court sentenced Gary to serve
concurrent sentences of 87 months, respectively. This court may exer-
cise its discretionary remedial power to correct the district court if it
committed plain error. United States v. Childress, 26 F.3d 498, 502
(4th Cir. 1994). Four conditions must be met before this court will
notice plain error: (1) there must be error; (2) it must be plain under
current law; (3) it must affect substantial rights, typically meaning the
defendant is prejudiced by the error in that it affected the outcome of
the proceedings; and (4) the error must seriously affect the fairness,
integrity, or public reputation of judicial proceedings. United States
v. Olano, 507 U.S. 725, 733-37 (1993).
It is well established that section 2113(a) is a lesser-included
offense of § 2113(d). United States v. Whitley, 759 F.2d 327, 331 (4th
Cir. 1985) (en banc) (citing Prince v. United States, 352 U.S. 322(1957)). In fact, this court has long recognized that § 2113 defines a
primary offense of bank robbery in § 2113(a), and both mitigated and
aggravated forms of that crime in subsections (b) and (d). United
States v. Shelton, 465 F.2d 361, 363 (4th Cir. 1972); see also United
States v. Gladdis, 424 U.S. 544, 547 (1976) (recognizing "merger" of
convictions under § 2113(a) and § 2113(d) for same robbery). We
find that Gary’s convictions under both § 2113(a) and § 2113(d) are
multiplicitous and that the court committed plain error in imposing
concurrent sentences for the lesser included offenses of bank robbery.
See Shelton, 465 F.2d at 363 (vacating duplicitous sentences even
though imposed to run concurrently); see also United States v. Burns,
990 F.2d 1426, 1438 (4th Cir. 1993) (holding that the remedy for
multiplicitous convictions and sentences is to vacate the duplicative
counts of conviction and attendant sentences).
Accordingly, we vacate the five convictions and sentences for the
lesser included offense of bank robbery, affirm the remaining convic-
tions and sentences, and remand to the district court to enter judgment
in accordance with this opinion. 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 IN PART, AND REMANDED