United States v. Mark Green

Case: 10-51182 Document: 00511707192 Page: 1 Date Filed: 12/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 27, 2011
No. 10-51182
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARK ANTHONY GREEN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-185-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
Mark Anthony Green appeals his convictions and sentences for
interference with commerce by robbery and aiding and abetting, possession of
a firearm in relation to a crime of violence, possession of a firearm by a convicted
felony, and possession of an unregistered firearm. Green contends that the
evidence was insufficient to support his convictions. Because Green did not
move for a judgment of acquittal at the close of all the evidence, we review the
claim under the more stringent “manifest miscarriage of justice” standard. See
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-51182
United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). “Under this exacting
standard of review, a claim of evidentiary insufficiency will be rejected unless
the record is devoid of evidence pointing to guilt or if the evidence is so tenuous
that a conviction is shocking.” United States v. Phillips, 477 F.3d 215, 219 (5th
Cir. 2007) (internal quotation marks and citation omitted).
Green has not shown that the record is devoid of evidence of guilt or that
the evidence was so tenuous that his conviction is shocking. See Phillips, 477
F.3d at 219. The testimony of accomplices Joshua Smith and Justin Mosqueda
and of cab driver Edgar Girral, as well as the surveillance video at Wal-Mart,
established that Green was the black man who participated in the robbery of the
Cricket Store, that Green possessed and fired a firearm during the robbery, that
the robbers -- Smith, Mosquida, and Green -- took a cab to a Wal-Mart store
immediately afterward, and that they divided the money from the robbery at the
Wal-Mart store. See United States v. Rasco, 123 F.3d 222, 229 (5th Cir. 1997)
(holding that a defendant may be convicted based on the uncorroborated
testimony of a coconspirator). The testimony of Smith and Mosqueda alone was
sufficient even though they were “interested due to a plea bargain or promise of
leniency, unless the testimony is incredible or insubstantial on its face.” See
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). Green does not
argue that the testimony of Smith and Mosqueda was incredible or insubstantial
on its face. Further, the credibility of Smith and Mosqueda was a matter for the
jury, and this court will not reevaluate the jury’s credibility determination. See
United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). Green does
not dispute that he was a convicted felon at the time of the robbery. The
testimony of Officer Silvio established that Green knowingly possessed a
short-barreled shotgun at the time of his arrest, as the barrel of the shotgun was
protruding from Green’s backpack. In view of the evidence, the jury could infer
that Green knowingly possessed the firearm. See United States v. Fuchs, 467
F.3d 889, 904 (5th Cir. 2006). Further, the Government presented ballistics
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No. 10-51182
evidence that linked the shotgun in Green’s possession at the time of his arrest
to the one used in the robbery. Therefore, the record is not devoid of evidence of
Green’s guilt or so tenuous that his convictions are shocking. See Phillips, 477
F.3d at 219.
Green argues that the admission of his identification by Girral, the cab
driver who drove the three robbers from the Cricket Store to a Wal-Mart store
immediately after the robbery, violated his due process rights because police
presented Girral with still photographs from the Wal-Mart surveillance video
before he was able to make a 100 percent positive identification. Green asserts
that the error was not harmless.
We need not decide whether it was error to admit Girral’s identification
because any error would be harmless, as the evidence of Green’s guilt was not
only “sufficient” but was “so overwhelming as to establish the guilt of the
accused beyond a reasonable doubt.” See United States v. Watkins, 741 F.2d 692,
695 (5th Cir. 1984). The evidence was sufficient to support Green’s convictions
even without Girral’s testimony: Mosqueda and Smith testified that Green and
Smith robbed the Cricket Store while Mosqueda located a cab as a a getaway
vehicle; the Government introduced the surveillance video of a Wal-Mart store,
showing Smith, Mosqueda, and Green together shortly after the robbery; Officer
Silvio testified that at the time of Green’s arrest, Green was carrying a backpack
with the barrel of a shotgun protruding out of the top of it; and the shotgun had
a short barrel and was linked through ballistics evidence to the one used in the
robbery. In view of the totality of the circumstances including all of the evidence
against Green, the admission of Girral’s identification testimony, if it was error,
was harmless error. See Watkins, 741 F.2d at 695.
Green argues that the district court erred in imposing a two-level
enhancement pursuant to U.S.S.G. § 2B3.1(b)(3)(A) because the victim’s ringing
in his ears was not qualifying a bodily injury. The district court did not clearly
err in finding that the victim had a bodily injury as he suffered temporary
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hearing loss, irritation, and continuing ringing in his ears as a result of Green’s
firing a shotgun toward the wall approximately three to four inches away from
his face. See United States v. Jefferson, 258 F.3d 405, 413-14 (5th Cir. 2001); see
also United States v. Maiden, 606 F.3d 337, 339-40 (7th Cir. 2010) (upholding
enhancement where defendant used mace causing victim to suffer burning
sensation in her eyes and to be unable to wear contact lenses); United States v.
Hoelzer, 183 F.3d 880, 882-83 (8th Cir. 1999) (affirming enhancement where
store clerk suffered bruises to her face, chest, and legs); United States v. Perkins,
132 F.3d 1324, 1326 (10th Cir. 1997) (affirming enhancement where victim
sustained “small laceration and bruising” and continued neck and shoulder
pain); United States v. Greene, 964 F.2d 911 (9th Cir. 1992) (affirming
enhancement where a victim was slapped in the face, causing pain, swelling, and
redness). Because the victim suffered temporary hearing loss, irritation,
continued ringing in his ears from the time of the robbery to the time of the trial,
and sought medical attention for the problem and received prescriptions, the
district court did not clearly err in imposing the enhancement under
§ 2B3.1(b)(3)(A). See United States v. Griffith, 522 F.3d 607, 611-12 (5th Cir.
2008).
AFFIRMED.
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