United States v. Starlet Kizer

Case: 12-60575 Document: 00512530990 Page: 1 Date Filed: 02/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-60575 February 12, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
STARLET KIZER; ANGELA BRYSON MILLER,
Defendants-Appellants
Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 3:10-CR-163
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Defendants-Appellants Starlet Kizer and Angela Bryson Miller were
charged with aiding and abetting the armed robbery of the Slayden Bank in
Lamar, Mississippi (Count One); aiding and abetting the brandishing and
carrying and using of firearms and possessing handguns during and in relation
to a crime of violence (i.e., the robbery of Slayden Bank) (Count Two); aiding
and abetting the armed robbery of the Citizens’ Bank in Byhalia, Mississippi
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 12-60575
(Count Three); and aiding and abetting the brandishing and carrying and
using of firearms and possessing handguns during and in relation to a crime of
violence (i.e., the robbery of Citizens’ Bank) (Count Four). A jury convicted
Kizer of Counts Two, Three, and Four and Miller of Counts Two and Four.
Kizer was sentenced to 385 months in prison and five years of supervised
release, and Miller was sentenced to 384 months in prison and five years of
supervised release. Each defendant appealed her conviction and sentence.
The defendants contend that the district court erroneously denied their
pretrial motions to suppress firearms that were seized from their home. The
defendants assert that the search-warrant application was disingenuous and
was designed to allow the executing agents to search for evidence of the instant
offenses while ostensibly searching for evidence related to Miller’s suspected
counterfeiting crimes. The record reflects that the good-faith exception applies
to uphold the validity of the search. See United States v. Leon, 468 U.S. 897,
920-21 (1984); United States v. Shugart, 117 F.3d 838, 844-46 (5th Cir. 1987).
The failure of the search-warrant application to reveal the possible connection
of the firearms to the bank robberies did not render invalid the seizure of the
firearms based on their possible relationship to Miller’s counterfeiting crimes.
See United States v. Haydel, 649 F.2d 1152, 1159 (5th Cir. 1981).
The defendants also contend that the district court erred by not requiring
the government to disclose, under the Jencks Act, 18 U.S.C. § 3500, FBI Forms
302 reflecting written statements given by one Marcus Westbrook. Those
forms were not prepared or verified by Westbrook and did not purport to be a
substantially verbatim account of his statements; there is no indication that
the forms, which were a summary of Westbrook’s version of the facts, were
reviewed by or read to him for his adoption or approval. See United States v.
Williams, 998 F.2d 258, 269 (5th Cir. 1993); United States v. Pierce, 893 F.2d
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669, 675 (5th Cir. 1990). The record reflects that the district court examined
the materials to determine whether they were discoverable and made findings
based on that examination.
The defendants contend that the district court erred in failing to grant
their motions for judgment of acquittal on the basis that the jury instructions
for Counts Two and Four could not sustain those convictions when the jury
acquitted them of the predicate armed robberies. The defendants also claim
that their acquittals on the armed robbery offenses preclude their convictions
on Counts Two and Four because there was insufficient evidence to support
their guilt of the predicate offenses. As the defendants did not object on these
grounds at trial our review is for plain error. See United States v. Daniels, 281
F.3d 168, 183 (5th Cir. 2002); FED. R. CRIM. P. 30(d).
There is no statutory requirement that a defendant be convicted of a
predicate offense to be convicted under 18 U.S.C. § 924(c). See United States
v. Munoz-Fabela, 896 F.2d 908, 910-11 (5th Cir. 1990). The jury, in accordance
with the law and the pattern jury instructions, was not told that, to convict of
Counts Two and Four, it had to convict the defendants of the armed-robbery
offenses, or that an acquittal on one crime was dispositive of guilt on any other
offense. See id. at 911; United States v. Whitfield, 590 F.3d 325, 354 (5th Cir.
2009). There was also ample evidence from which a reasonable jury could have
found that the defendants at least aided and abetted the armed robberies, see
United States v. Ruiz, 986 F.2d 905, 911 (5th Cir. 1993), and that their
acquiring and providing the firearms that were wielded during the armed
robberies is sufficient to support their guilt on the firearms offenses. See
United States v. Lopez-Urbina, 434 F.3d 750, 758-59 (5th Cir. 2005). Thus, the
defendants have not shown plain error. See Daniels, 281 F.3d at 183.
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Finally, the defendants assert that, in violation of Alleyne v. United
States, 133 S. Ct. 2151 (2013), the district court unconstitutionally increased
the statutory maximum sentence as to Counts Two and Four based on facts
that were not found by the jury beyond a reasonable doubt. The defendants
did not raise these challenges in the district court, so our review is again for
plain error. See Daniels, 281 F.3d at 183; see also Johnson v. United States,
520 U.S. 461, 464 (1997) (holding that plain error applies even in cases where
relevant rule of law was not established until after trial).
The evidence, including eyewitness testimony and surveillance photos,
irrefutably reflected that the firearms at issue were wielded during the
robberies and were pointed at bank employees to effectuate the robberies. The
defendants therefore have not established reversible plain error. See Puckett
v. United States, 556 U.S. 129, 135 (2009); United States v. Cotton, 535 U.S.
625, 632-33 (2002); Neder v. United States, 527 U.S. 1, 18 (1999).
The judgment of the district court is AFFIRMED.
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