United States v. Donald Woods

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-4074
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ONALD M. W OODS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 561—Amy J. St. Eve, Judge.
A RGUED JANUARY 8, 2009—D ECIDED F EBRUARY 17, 2009
Before E ASTERBROOK, Chief Judge, and E VANS and
T INDER, Circuit Judges.
E VANS, Circuit Judge. Needing a getaway car for a
bank robbery, Donald Woods borrowed one from a
woman who bought drugs from him. Perhaps not the
best choice—it had vanity license plates. Then he used
part of the take from the robbery to retrieve a van he
had borrowed from another woman. The second car
had been impounded by the police when, while he was
driving it the night before the robbery, he was cited for
2 No. 07-4074
operating a motor vehicle after his license was revoked
and for illegal sound amplification. Not all that surpris-
ingly, things went bad, and Woods was indicted and
subsequently convicted after a jury trial of conspiracy
to commit bank robbery and bank robbery. He was sen-
tenced to 60 months in prison on the conspiracy charge
and 160 months on the substantive charge, with the
sentences to run consecutively. He appeals both the
conviction and sentence.
At about 9:20 on an August morning in 2006, two
masked men entered the NuMark Credit Union in Joliet,
Illinois, and made off with $23,000. They left in the car
Woods had borrowed from his drug customer, Aimee
Sefcik, a car bearing the license plate AIMSEF6. Woods
was driving. The Joliet Police Department began an
investigation and two days later took one of the robbers,
Christian Noel, into custody. Noel gave a written state-
ment to detectives and later a videotaped confession.
He also spoke to FBI agents. In each statement, he said
he committed the robbery with Donald Woods and An-
thony Jenkins, a/k/a/ Bonzo. His story about who did
what—i.e., who drove the car and who went into the
credit union—varied from time to time, but at Woods’
trial he testified that he and Jenkins went into the
credit union and Woods drove the getaway car.
Woods did not testify at trial, but he presented an
alibi—a pretty good one as alibis go—as to his where-
abouts on the morning of the robbery. The story begins
the night before the robbery when Woods was driving a
car registered to his girlfriend, Anita Robinson. Police
No. 07-4074 3
stopped him because the car radio was playing way
too loud. As it turns out, he also had a revoked license.
Officers had the car towed to Collision Revision in
Joliet. As to the alibi, Robinson testified that she and
Woods lived together, and the morning of the robbery
they awoke between 9:30 and 9:45. They left the house,
she said, at about 10 a.m. to try to borrow money from
Woods’ aunt in order to pay the fee to have the car re-
leased. She said Woods obtained $500, after which she
and Woods drove to the police station to pay the fee. But
because Robinson had not brought the title to the car
with her, they had to go home to get it. They returned
to the station at about 11 a.m. and paid the fee. The
receipt is stamped 11:14 a.m. Their visits to the police
station that morning were recorded by security cameras.
In addition to presenting his alibi witness, Woods
also called a Quentin Reed, who met Noel when they
were both incarcerated at the Dodge County Correctional
Facility in Wisconsin. Noel told Reed that he had com-
mitted the robbery with two of his cousins. The point of
the testimony was that “cousins” should be taken
literally; Woods and Noel are not related; and therefore
Woods could not have been one of the robbers.
A few more details of this improbable story will
unfold as we discuss the issues Woods raises. He con-
tends that the trial judge committed errors in the admis-
sion of evidence, that the evidence was not sufficient
to sustain the conviction, that the judge improperly
calculated the sentencing guidelines and did not con-
sider the sentencing factors set out in 18 U.S.C. § 3553(a)(2),
4 No. 07-4074
and that there is unwarranted disparity between his
sentence and the one his accomplice and codefendant,
Noel, received.
We will first turn to the evidentiary rulings, which we
review for an abuse of discretion. This general standard
applies in the situations before us—where the evidence
admitted is said to be “intricately related” to the charged
offense, United States v. Wantuch, 525 F.3d 505, 517 (7th
Cir. 2008), and where it involves a transcript of an
audio recording. United States v. Wilson, 481 F.3d 475(7th Cir. 2007). Even if there is an evidentiary mistake
made by the trial court, we do not reverse if the error
was harmless. United States v. Bonty, 383 F.3d 575 (7th
Cir. 2004).
The first item of evidence Woods contends was improp-
erly admitted was testimony that he provided drugs to
Sefcik. Woods argued in the trial court that, if the
jurors heard he sold drugs, they would conclude that he
was a bad person and likely to participate in a bank
robbery. The government contended that the evidence
was intricately related to the charged offense in that it
explained why Sefcik would give Woods her car. The
evidence showed that Woods often used it and that on
the day of the robbery he borrowed it on short notice
without having to explain why he wanted it. The evi-
dence explained why he could instruct Sefcik to lie for
him and say that “ ’John’ borrowed the car.” We cannot
find an abuse of discretion in the admission of the evi-
dence. The fact that Woods sold drugs does not signifi-
cantly increase the possibility that he would rob a bank.
No. 07-4074 5
Furthermore, the evidence fills a big gap by explaining
why Sefcik would so willingly lend him her car even
after he talked with her about robbing a bank.
Woods also contests the admission of the transcript of
the recorded conversation between him and Noel. Three
days after the robbery, Noel worked with police officers
to place a telephone call to Woods, a call which was
recorded. During the conversation, Noel asked what
happened to Bonzo (Jenkins). Woods said that Bonzo
left town and his whereabouts were known. Woods
told Noel to stay off the telephone, but as soon as the
call ended, Woods called Jenkins.
Woods contended that on the recording, his words
were virtually impossible to understand. He was con-
cerned that the inaudibility would mean that the jurors
would not be able to evaluate the context of the conversa-
tion, the manner in which words were said, or the in-
flection of the voices and would therefore simply rely on
the written transcript. The district judge examined the
recording and the transcript in camera. At trial, the record-
ing itself was admitted without objection. But when the
government moved that the transcript be admitted,
Woods objected, and a voir dire examination of Noel
proceeded. Noel testified that he actively participated
in the preparation of the transcript and that he could
understand the words. The judge concluded that the
objection went to the weight, not the admissibility, of the
transcript. We see no abuse of discretion in the ruling.
The final piece of evidence Woods objects to is the
testimony of William Tierney, an employee of NuMark.
6 No. 07-4074
Tierney had drawn a sketch of a man he had observed
in the credit union the day before the robbery, ostensibly
Woods. The man was talking on a cell phone. Because
there was a policy prohibiting customers from using
cell phones inside the credit union, Tierney asked the
man to turn it off. The sketch Tierney later drew depicted
a man with hair. Tierney also had been shown a photo
array from which he identified Woods. But each man in
the array was bald, and that, Woods argued, was unduly
suggestive, and anything flowing from it was “fruit of the
poisonous tree.” At trial, Tierney identified Woods in the
courtroom, and the prosecution made no mention of the
sketch or the photo array. On cross-examination, the
defense elicited testimony about both the sketch and the
photo array and moved that the sketch be admitted
into evidence. It was. On appeal, Woods argues that,
because the person in Tierney’s sketch had sideburns
and at trial it was established that Woods had been bald
for many years, Tierney’s testimony that he had seen
Woods in the lobby of the credit union the day before
the robbery was unduly prejudicial. Whatever Woods’
current objection is to Tierney’s testimony, the matter
is one for cross-examination, which is precisely the way
it came before the jury. The jury was properly in a posi-
tion to decide whether Tierney’s testimony was worthy
of belief or not.
We conclude that there were no evidentiary errors. But
had there been, they would have been harmless. The
testimony of codefendant and accomplice Noel about
how the robbery went down was sufficient by itself to
sustain the conviction.
No. 07-4074 7
Which brings us to the issue of the sufficiency of the
evidence. A defendant faces a “nearly insurmountable
hurdle” in challenging the sufficiency of the evidence to
sustain a conviction. United States v. Spells, 537 F.3d 743,
746 (7th Cir. 2008). He must show that after viewing
the evidence in the light most favorable to the prosecu-
tion, no rational trier of fact could have found him guilty
beyond a reasonable doubt. United States v. Stevens, 453
F.3d 963 (7th Cir. 2006). We do not weigh the evidence
or second-guess the jury’s credibility determinations.
Id. We uphold convictions based on uncorroborated
testimony of an accomplice unless the testimony is in-
credible as a matter of law. United States v. Van Wyhe, 965
F.2d 528 (7th Cir. 1992).
Noel’s testimony itself supports the conviction. He
described the events leading up to the robbery, including
his obtaining BB guns from his house. He testified that
after the robbery Woods said he was going to use some
of the money to get his “van out of the pound.” Noel also
testified about returning Sefcik’s car to her house where
he saw a short white woman with curly hair standing
in the doorway. Sefcik’s story was slightly different; she
said Woods was alone when he returned her car. But
differences such as this are for the jury to evaluate. Noel
also testified that on the way to the robbery, Woods
said that NuMark would be a good target because his
“girl” cashes her checks there and says “there’s no secu-
rity.” Robinson had, in fact, maintained an account at
the NuMark for several years.
Sefcik testified that she had worked as an assistant bank
manager at Harris Bank and two other banks. She said
8 No. 07-4074
that about a month before the robbery, Woods told her
he was considering robbing a bank and asked her about
security procedures in banks. She told him that simply
by walking into a bank, a person could see whether it
had security cameras or security guards. Woods also told
Sefcik to lie if anyone asked who borrowed her car. Also,
there is no question that Sefcik’s car was the getaway
car. Phone records also show a pattern of calls between
Jenkins, Noel, and Woods and between Sefcik and Woods.
But what, one may ask, about the alibi? After all, twice
the morning of the robbery Woods shows up on
security tape from the police station. Even so, the alibi is
far from airtight. Robinson testified only that when she
awoke at between 9:30 and 9:45 that morning, Woods
was there. The robbery was at 9:20. Evidence showed
there was time for Woods to arrive home from the
robbery by 9:34. Additionally, even if Robinson had
said Woods was with her at 9:20, the jury was free to
discredit her testimony in light of her relationship with
Woods. She said she loved him; she lived with him; and
they had two children together. There also was ample
time after the robbery for him to arrive at the police
station by 10 or 11 and again at about 11:15 when he
and Robinson returned with the car title. In short, the
evidence was sufficient to sustain the conviction.
Woods also raises issues regarding his sentence. He
contends that the judge improperly calculated his
offense level by treating him as a career offender. We
review a determination that a defendant is a career of-
fender de novo. United States v. Billups, 536 F.3d 574, 578
No. 07-4074 9
(7th Cir. 2008). The court’s findings of fact are reviewed
for clear error. United States v. Samuels, 521 F.3d 804, 815
(7th Cir. 2008). If the guideline calculation is correct, we
then consider whether the sentence is reasonable.
Under the United States Sentencing Guidelines, a
defendant is a career offender if he is at least 18 years old
at the time of the crime, the offense of which he was
convicted is a felony that is either a crime of violence or
a controlled substance offense, and he had at least two
prior felony convictions for a crime of violence or a con-
trolled substance offense. U.S.S.G. § 4B1.2(a). Woods
contests only whether he has two prior convictions.
One prior conviction on which the court relied was for
a 1995 robbery. It was a class 2 felony under Illinois law
punishable by three to seven years imprisonment. His
sentence was 180 days in prison and a 30-month term
of probation. Later his probation was revoked and he
was sentenced to four years in prison. Woods argues
that this robbery was not a crime of violence because he
was not sentenced to more than a year. The argument
cannot be sustained on the facts, given the four-year
sentence ultimately imposed, and is simply wrong on
the law. U.S.S.G. § 4B1.2 defines “crime of violence,” in
part, as “any offense under federal or state law, punishable
by imprisonment for a term exceeding one year.” As we
said, this felony was “punishable” by a term of three to
seven years.
The other prior conviction concerned a controlled
substance offense. Woods says that because he was con-
victed of “possession” of a controlled substance, not of
10 No. 07-4074
manufacturing, importing, exporting, distributing, or
dispensing a controlled substance as U.S.S.G. § 4B1.2(b)
requires, the offense cannot be used to support a
finding that he is a career criminal. The problem is that
all records, including the indictment for the offense in
Will County, Illinois, and the judgment and sentencing
order, describe the offense as unlawful delivery of a con-
trolled substance, a class 2 felony. There is no indication
that the charge was ever reduced to simple possession.
Woods’ argument fails.
In another objection to the guidelines calculations,
Woods contends that the judge improperly applied a 3-
level sentencing enhancement for brandishing or pos-
sessing a dangerous weapon, pursuant to U.S.S.G.
§ 2B3.1(b)(2)(E). This argument also fails and, in any
case, is futile. His status as a career offender increased
his offense level to the point where this enhancement
had no effect on the guideline range. But, regardless, the
two BB guns would qualify as dangerous weapons.
Woods claims, without reference to the record, that one
of the guns was inoperable, but whether or not it was, the
guns meet the definition in the comment to U.S.S.G.
§ 1B1.1(D). A gun is a dangerous weapon if it closely
resembles a dangerous weapon or was used in a manner
to create the impression that it was such. See McLaughlin
v. United States, 476 U.S. 16 (1986).
Woods faults the district judge for a mere pro forma
glance at the requirements of 18 U.S.C. § 3553(a). But we
do not require that a district judge mention all the § 3553
factors, nor that she recite “magic words” at sentencing.
No. 07-4074 11
United States v. Tyra, 454 F.3d 686, 687 (7th Cir. 2006).
Here, after listening to the parties and offering them
an opportunity to speak, the judge discussed the nature
and circumstances of the offense and Woods’ history and
characteristics, particularly his criminal record. The
consideration of the § 3553(a) factors was adequate.
Woods complains that his sentence was dispropor-
tionately longer than the 38-month term Noel received.
However, we do not view a discrepancy between sen-
tences of codefendants as a basis for challenging a sen-
tence. United States v. Omole, 523 F.3d 691 (7th Cir.
2008). We look at a disparity only if it is between the
defendant’s sentence and all other similar sentences
imposed nationwide. United States v. Simpson, 337 F.3d
905 (7th Cir. 2003). Furthermore, there are significant
differences between Woods and Noel. Noel’s only prior
crimes at the time of sentencing were two misdemeanor
convictions—one for stealing a pair of gym shoes and
one for a traffic matter. Noel also entered a guilty plea,
and his offense level was reduced by three levels for
acceptance of responsibility. Additionally, Noel provided
substantial assistance to the government. The disparity
between these two sentences is not without justification.
Finally, Woods argues that the imposition of consec-
utive sentences was improper. It is true that because
the statutory maximum for the bank robbery was
240 months and Woods received 220 months, there was
no need to impose consecutive sentences. On the other
hand, it makes no difference whether the 220-month
sentence grows out of consecutive sentences or whether
12 No. 07-4074
the sentence was 220 months on the bank robbery count
with a concurrent sentence on the conspiracy count. The
sentence does not pose the same problem as did the
sentence in United States v. Spells, 537 F.3d 743 (7th Cir.
2008).
A FFIRMED.
2-17-09