UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4842
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HAROLD FULLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. David A. Faber, Chief
District Judge. (CR-04-107)
Submitted: July 17, 2006 Decided: July 28, 2006
Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina; Thomas R. Ascik,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Harold Fuller was indicted on one count of simple (unarmed)
bank robbery, see 18 U.S.C.A. § 2113(a); one count of armed bank
robbery, see 18 U.S.C.A. § 2113(d); and one count of using,
carrying, or possessing a handgun in furtherance of the bank
robbery, see 18 U.S.C.A. § 924(c). Each count carried with it an
allegation that Fuller aided and abetted the commission of the
charged crime. See 18 U.S.C.A. § 2. Fuller pleaded guilty to the
simple bank robbery count and proceeded to trial on the remaining
counts. The jury convicted Fuller of both counts. Concluding that
the conviction on the unarmed bank robbery charge merged with the
armed bank robbery conviction, the district court vacated the §
2113(a) conviction. The court sentenced Fuller to 84 months
imprisonment on the armed bank robbery charge and a consecutive
term of 60 months on the § 924(c) charge. Fuller appeals.
Fuller first contends that the evidence was insufficient to
support his convictions. He argues that because he was merely the
driver of the getaway car and did not enter the bank, his
convictions can stand only under an aiding and abetting theory. He
claims that the evidence was insufficient to show that he knew that
Williams Reynolds, his accomplice, would use a gun when robbing the
bank. When considering a sufficiency-of-the-evidence challenge,
“[t]he verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
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support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
“[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). When evaluating the sufficiency of the evidence, this court
“may not weigh the evidence or review the credibility of the
witnesses. Those functions are reserved for the jury, and if the
evidence supports different, reasonable interpretations, the jury
decides which interpretation to believe.” See United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997) (citation and internal
quotation marks omitted).
The government’s evidence established that Reynolds had the
gun in his possession when he robbed the bank. While there was no
evidence that he displayed the gun, he did threaten to use the gun.
See J.A. 13. That evidence is sufficient to show that an armed
bank robbery occurred, see 18 U.S.C.A. § 2113(d), and it is
likewise sufficient to establish that the weapon was used, carried,
or possessed in furtherance of a crime of violence, as required by
§ 924(c). See Bailey v. United States, 516 U.S. 137, 149 (1995)
(explaining that mentioning the presence of a hidden gun can amount
to “use” of the gun within the meaning of § 924(c)); United States
v. Mitchell, 104 F.3d 649, 653-54 (4th Cir. 1997) (explaining the
evidence necessary to establish that the defendant carried a
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firearm in furtherance of a drug trafficking offense or crime of
violence). The government also presented evidence showing that
Fuller knew Reynolds was taking a gun into the bank. Reynolds
testified that Fuller knew he had a gun, see J.A. 168, and an FBI
agent who interviewed Fuller testified that Fuller told him he knew
that Reynolds was taking a gun into the bank, see J.A. 88-89. This
evidence is thus sufficient to support Fuller’s convictions under
an aiding and abetting theory. See United States v. Wilson, 135
F.3d 291, 305 (4th Cir. 1998) (discussing aider-and-abettor
liability for § 924(c) violations); United States v. McCaskill, 676
F.2d 995, 998 (4th Cir. 1982) (discussing aider-and-abettor
liability for an armed bank robbery charge).
Fuller also contends that the sentence imposed by the district
court was unreasonable. After the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), a sentencing court is
no longer bound by the range prescribed by the sentencing
guidelines. See United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). Nonetheless, in determining a sentence post-Booker,
courts are still required to calculate and consider the applicable
guideline range as well as the factors set forth in 18 U.S.C.A. §
3553(a). See id. A sentence is within the properly calculated
guideline range is presumptively reasonable. See United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006).
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In this case, Fuller’s sentence was within the
properly-calculated guideline range and was within the statutory
maximum sentence. Fuller’s sentence thus is presumptively
reasonable, and we find his appellate arguments inadequate to
overcome this presumption. That Fuller was only the driver of the
getaway car, did not enter the bank, and did not physically possess
the firearm does not make him less culpable, nor do those facts
render a within-guideline sentence unreasonable. And while Fuller
contends that his criminal history category was primarily the
result of old criminal conduct, we note that five of Fuller’s
criminal history points were for criminal conduct that occurred
less than ten years before the bank robbery at issue in this case.
Moreover, the district court carefully considered this argument and
concluded that the criminal history calculation was proper and that
there was no reason to impose a below-guideline sentence. We
cannot conclude that the district court abused its discretion in
this regard. Because the district court appropriately treated the
guidelines as advisory and properly calculated and considered the
guideline range and the relevant § 3553(a) factors, we find the
sentence reasonable.
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Accordingly, we affirm Fuller’s convictions and sentence.
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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