UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4733
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN CARROLL WALL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District
of North Carolina, at Durham. William L. Osteen, District Judge.
(CR-04-8)
Submitted: June 15, 2005 Decided: July 14, 2005
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Robert L. McClellan, J. Marshall Shelton, IVEY, MCCLELLAN, GATTON &
TALCOTT, L.L.P., Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
In April 2004, John Carroll Wall, Jr., was found guilty
by a jury of bank robbery, in violation of 18 U.S.C. § 2113(a)
(2000), armed bank robbery, in violation of 18 U.S.C. § 2113(d)
(2000), and the carrying and use of firearms during and in relation
to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(2000). The first count of the indictment merged with the second,
for which the district court sentenced Wall to 108 months’
imprisonment. The third count carried a mandatory minimum sentence
of 84 months’ imprisonment under 18 U.S.C. § 924(c)(1)(A)(ii)
(2000).
On appeal, Wall first contends that the district court
improperly issued a jury instruction concerning aiding and abetting,
thereby misleading the jury. The decision to give or not to give a
jury instruction, as well as the content of the instruction, is
reviewed for abuse of discretion. United States v. Russell, 971
F.2d 1098, 1107 (4th Cir. 1992). Here, strong circumstantial
evidence linked Wall with the bank robbery; however, because the two
robbers’ faces were concealed, witnesses at the scene could not
positively identify Wall. Furthermore, of the two robbers, one was
a more active participant. The district court, concerned that the
question of which robber “actually [took the money] and put it in
the bag himself” might confuse the jury, deemed the aiding and
abetting instruction appropriate.
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“[W]hen a case is submitted to a jury on two adequate
legal theories and the jury returns a general verdict of guilty,
affirmance is appropriate so long as the evidence is sufficient to
support a conviction on either theory.” United States v. Seidman,
156 F.3d 542, 551 (4th Cir. 1998). Moreover, when evidence
presented at trial supports an aiding and abetting theory, the court
may, if it deems such an instruction to be appropriate, instruct on
that theory even though it was not argued by the Government. United
States v. Horton, 921 F.2d 540, 544 (4th Cir. 1990). Accordingly,
we conclude that the district court did not abuse its discretion by
issuing the aiding and abetting instruction.
Wall also appeals his sentence on the second count of the
indictment, for which he received 108 months’ imprisonment. The
sentence includes the district court’s enhancement, under U.S.
Sentencing Guidelines Manual § 3B1.1(c) (2003), on the ground that
Wall was the organizer or leader of a criminal activity that
involved fewer than five participants.1 In United States v. Booker,
125 S. Ct. 738 (2005), the Supreme Court held that the federal
Sentencing Guidelines scheme, under which courts were required to
impose sentencing enhancements based on facts found by the court by
a preponderance of the evidence, violated the Sixth Amendment
1
The sentence pertaining to the second count contains two other
enhancements that Wall does not challenge on appeal.
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because of its mandatory nature. Id. at 746 (Stevens, J., opinion
of the Court).
At the sentencing hearing, the district court entered into
the record an objection for Wall on the basis of Booker’s precursor,
Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (holding that
maximum sentence court can impose must be based solely on facts
“reflected in the jury verdict or admitted by the defendant”). The
Government concedes that the district court’s error2 in including
this enhancement was not harmless. See Fed. R. Crim. P. 52(a).
Accordingly, we affirm Wall’s convictions, vacate his
sentence on the second count, and remand his case to the district
court for resentencing consistent with Booker.3
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
2
Just as we noted in United States v. Hughes, 401 F.3d 540, 545
n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Wall’s sentencing.
3
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult [the]
Guidelines and take them into account when sentencing.” 125 S. Ct.
at 767. On remand, the district court should first determine the
appropriate sentencing range under the Guidelines, making all
factual findings appropriate for that determination. See Hughes,
401 F.3d at 546. The court should consider this sentencing range
along with the other factors described in 18 U.S.C. § 3553(a)
(2000), and then impose a sentence. Id. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C. § 3553(c)(2) (2000). Id.
The sentence must be “within the statutorily prescribed ranged and
. . . reasonable.” Id. at 546-47.
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