United States v. Charles E. Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 99-4636

CHARLES EDWARD JOHNSON, II,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 99-4670

CLAIBORNE LEWIS BAKER,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge;
Frank W. Bullock, Jr., District Judge.
(CR-98-351)

Submitted: February 29, 2000

Decided: March 17, 2000

Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John David Bryson, WYATT, EARLY, HARRIS & WHEELER,
L.L.P., High Point, North Carolina; David B. Freedman, WHITE &
CRUMPLER, Winston-Salem, North Carolina, for Appellants. Walter
C. Holton, Jr., United States Attorney, L. Patrick Auld, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Claiborne Lewis Baker and Charles Edward Johnson each pled
guilty to committing the same armed bank robbery, see 18 U.S.C.A.
§ 2113(d) (West Supp. 1999), 18 U.S.C. § 2 (1994), and carrying and
using a firearm in a crime of violence, see 18 U.S.C.A. § 924(c)
(West Supp. 1999). Johnson and Baker received sentences of 141
months imprisonment and 210 months imprisonment, respectively.
They have appealed their sentences, arguing that the district court
clearly erred in finding as a fact that each carried a firearm during the
bank robbery, and in applying in each case a five-level enhancement
under U.S. Sentencing Guidelines Manual§ 2B3.1(b)(2)(C) (1998),
based on the firearm brandished or displayed by the other. Baker also
contends that the district court clearly erred in finding that he had not
accepted responsibility for his criminal conduct. See USSG § 3E1.1.
We affirm.

I.

Appellants first challenge the district court's factual finding that
each of them carried a firearm. The district court's determination of
this factual issue is reviewed for clear error. See United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Two tellers and a cus-

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tomer were in the bank during the robbery. All three witnesses told
investigators immediately after the robbery that both robbers had car-
ried sawed-off shotguns. Although the bank surveillance photographs
showed one robber (identified later as Baker) carrying a firearm, the
second robber (Johnson) was not pictured as clearly and the photo-
graphs did not establish conclusively whether he also carried a gun.
Both Johnson and Baker asserted that only one firearm was used. The
third defendant, Omar Bynum, who drove the getaway van, stated
after his arrest that, at Baker's request, he had driven Baker and John-
son to the home of Desmond Patterson just before the robbery, where
Baker tried to buy a firearm. When Patterson refused to sell Baker a
gun, Bynum drove to Baker's house. Baker went in and brought out
something wrapped in a leather jacket. Bynum then drove Baker and
Johnson to the bank. Bynum said the only firearm he saw was in
Baker's hand as he exited the bank after the robbery. Patterson told
investigators that, after the defendants' arrests, Baker's brother told
him that "the guns" would not be found.

Johnson entered his guilty plea first and was sentenced first. One
of the tellers testified at Johnson's sentencing that she had seen two
guns. Johnson stipulated that the two remaining witnesses would tes-
tify similarly, and also stipulated to Bynum's and Patterson's state-
ments. Based primarily on the eyewitness evidence, the district court
found that Johnson and Baker each carried a firearm during the rob-
bery. When Baker was sentenced, a different district court judge came
to the same conclusion.

Johnson and Baker argue that the witnesses' statements were unre-
liable because the robbery was over so quickly that they lacked time
to observe the robbers accurately. They also point out that all three
defendants maintained that only one firearm was used, that the bank
photographs did not show a second firearm, and that Patterson stated
that Baker tried to buy a firearm from him just before the robbery,
which they argue Baker would not have done had he already pos-
sessed two firearms. We find that the district court judges did not
clearly err in finding the witnesses' statements more reliable than the
defendants' statements, in view of the fact that the other evidence did
not conclusively establish that only one firearm was used. Eyewitness
testimony is sufficient to support a conviction if the witnesses are
deemed credible by the factfinder. See United States v. Redd, 161

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F.3d 793, 797 (4th Cir. 1998), cert. denied, ___ U.S. ___, 67
U.S.L.W. 3613 (U.S. Apr. 5, 1999) (No. 98-8355).

II.

Baker and Johnson next claim error in the five-level enhancement
for brandishing, displaying, or possessing a firearm during the rob-
bery that they both received under USSG § 2B3.1(b)(2)(C). A defen-
dant who is sentenced under § 924(c) as well as for the underlying
offense may not be given an enhancement on the underlying offense
for possession, use, or discharge of a firearm during the offense, see
USSG § 2K2.4, comment. (n.2). However, in these cases the district
judges based the enhancements on the co-defendant's use of a fire-
arm. Three circuits have held that the enhancement is permissible
when it is based on the defendant's possession of a second firearm or
a firearm possessed by a co-defendant. See United States v. Cover,
199 F.3d 1270, 1277-78 (11th Cir. 2000) (co-defendant's gun) (citing
United States v. Rodriguez, 65 F.3d 932, 933 (11th Cir. 1995));
United States v. Washington, 44 F.3d 1271, 1280 (5th Cir. 1995)
(same); see also United States v. Park, 167 F.3d 1258, 1260-61 (9th
Cir. 1999) (enhancements based on firearms possessed by defendant
in other robberies; citing United States v. Willett, 90 F.3d 404, 407
(9th Cir. 1996)). Appellants rely on United States v. Knobloch, 131
F.3d 366, 371-73 (3d Cir. 1997), in which the Third Circuit held that
Application Note 2 precluded an enhancement for firearms the defen-
dant possessed during a drug conspiracy in addition to the one under-
lying his § 924(c) conviction. We find the majority view persuasive.
Accordingly, we find no error in the district judges' decision to
enhance each defendant's sentence because of the firearm possessed
by the other defendant.

III.

Finally, Baker challenges the district court's decision not to award
him an adjustment for acceptance of responsibility because he had
entered his guilty plea just before the scheduled trial date and had
tried to minimize his role in the offense. Baker argues that his plea
was entered in a sufficiently timely fashion, that he admitted his guilt,
and that he showed remorse, all of which entitled him to the adjust-

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ment.* Although it was never established who planned the robbery or
controlled the money afterward, Baker admitted robbing the bank
only after both co-defendants had admitted taking part in the robbery
and implicated him. The timeliness of a defendant's indication of
acceptance of responsibility is a factor the court may consider in
deciding whether the adjustment is appropriate. See USSG § 3E1.1,
comment. (n.1(h)). Moreover, Baker continued to maintain that he
followed Johnson into the bank and only held the shotgun after John-
son handed it to him inside the bank, despite contrary evidence from
the bank surveillance photographs. Therefore, Baker never truthfully
admitted at least one aspect of his criminal conduct which was estab-
lished by the government's evidence. On these facts, we find that the
district court did not clearly err in denying him the adjustment.

We therefore affirm the sentences. 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
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*Baker also challenges the government's assertions that he engaged in
conduct amounting to obstruction of justice by claiming for a time that
he had a false alibi. However, the district court did not base its decision
on Baker's early notice of a possible alibi. Instead, it gave Baker the ben-
efit of the doubt on that issue.

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