PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-5238
RODNEY MAURICE SAUNDERS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(CR-04-406-WDQ)
Argued: May 25, 2007
Decided: September 11, 2007
Before MICHAEL and DUNCAN, Circuit Judges, and
Frank D. WHITNEY, United States District Judge for the
Western District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Duncan and Judge Whitney joined.
COUNSEL
ARGUED: Sarah S. Gannett, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant. Paul M. Tiao,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: James Wyda, Federal Public Defender, John H. Chun, Assis-
2 UNITED STATES v. SAUNDERS
tant Federal Public Defender, Lauren E. Case, Staff Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
OPINION
MICHAEL, Circuit Judge:
Rodney Saunders appeals his conviction and sentence for being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
His case arises out of a robbery at a Baltimore, Maryland, liquor
store. We affirm, holding that (1) a key witness’s identification of
Saunders as one of the robbers was reliable, even though the police
showed the witness a photo array that was impermissibly suggestive;
(2) there was no error when the jury was not given a special verdict
form that would have allowed it to indicate whether it reached unani-
mous agreement on the specific gun or guns possessed by Saunders;
(3) the evidence was sufficient to support Saunders’s conviction on
the § 922(g)(1) gun charge; and (4) the evidence was sufficient to
support the four-level sentencing enhancement, see U.S.S.G.
§ 2K2.1(b)(5) (2004), based on Saunders’s use of a firearm in connec-
tion with another felony offense.
I.
Saunders, Tavon Walker, and a third (unidentified) man entered the
Club Paradise liquor store in Baltimore at 1:30 a.m. on December 8,
2003. Saunders and the unidentified man proceeded at gunpoint to rob
the three customers in the store, after patting down and neutralizing
the one security guard. Walker stayed at the entrance of the store to
prevent anyone from entering or exiting.
The store’s cashier, Tony Burton, witnessed the robbery from
behind the bullet-proof window that separates the cash register from
the area of the store accessible to customers. As the robbery was in
progress, Burton picked up the telephone receiver, which was below
the counter, and dialed 911. To avoid detection, he bent down and
UNITED STATES v. SAUNDERS 3
quickly stated that there was a "[r]obbery in progress at 1300 North
Carey Street." J.A. 141. The robbers fled the store as Burton hung up
the phone. Moments later, the 911 dispatcher called back, and Burton
reported some of the details. He told the dispatcher that the liquor
store had been robbed by three African American males carrying
guns; that one of the robbers "had a long black jacket on, a hipster,
and one had a gray . . . sweatshirt" with a "black scarf tied around his
face," J.A. 615; and that the three robbers drove away in a blue Dodge
Caravan minivan with "brown oak wood on the side," J.A. 615.
The dispatcher immediately reported the robbery and the descrip-
tion of the getaway vehicle over the police radio. A blue Dodge
minivan with oak paneling was quickly spotted by two officers who
were patrolling the neighborhood near Club Paradise in separate
cruisers. Officer Osiris Lofton pulled behind the van and followed it
to the intersection of Harlem Avenue and Carey Street, only six
blocks away from Club Paradise. Officer James Gomez saw the van
as he approached the intersection from the opposite direction. The
two officers activated their blue lights and pulled the van over. Offi-
cer Lofton parked his cruiser behind the van, and Officer Gomez
parked in front. Saunders immediately opened the van’s sliding door
and ran. As Saunders exited the van, Officer Gomez saw "a gun [fall]
between the van and the curb." J.A. 287.
Officer Gomez pursued Saunders through a vacant lot, where
Saunders reached into his waistband and tossed a dark, hard object to
the ground. Saunders continued running north on Carey Street, across
Lanvale Avenue, and on to Calhoun Street, where he discarded his
leather jacket. Moments later, Officer Kenneth Ivery, who had been
following Saunders in his cruiser, maneuvered his vehicle to block
Saunders’s path. This tactic slowed Saunders sufficiently to allow
Officers Gomez and Ivery to catch up to him and tackle him to the
ground.
Meanwhile, Officer Lofton pursued Walker, who had jumped out
of the van after Saunders. Officer Lofton chased Walker for several
blocks and captured him as he attempted to hide in a ditch near an
alley. Walker was wearing a gray hooded jacket and a black bandana.
Other participants in the robbery, including the third robber in the
4 UNITED STATES v. SAUNDERS
store, escaped in the minivan as the officers pursued Saunders and
Walker.
After Saunders and Walker were captured, the police canvassed
their flight routes and the area where the minivan was stopped. Three
handguns were recovered. A black Bryco nine millimeter and a silver
Smith & Wesson nine millimeter were found by the curb where
Saunders got out of the minivan. The third handgun, a dark colored
.380 caliber Tanfoglio, was recovered in the vacant lot where Officer
Gomez saw Saunders throw an object to the ground. The Tanfoglio
handgun was loaded with .380 Winchester ammunition, the same type
that Saunders had bought three months earlier at a Sports Authority
store in Baltimore. Officer Gomez also collected the medium length
("hipster") leather jacket that Saunders had discarded on Calhoun
Street.
In the meantime, one or more officers went to the Club Paradise
liquor store and asked Burton (the cashier) to accompany them to the
area of the arrests for a "show up" identification of the suspects. One
officer drove Burton to the area, but by the time they arrived,
Saunders and Walker had already been transported to the police sta-
tion. Burton was then taken to the station where, about two hours after
the arrests, he participated in photo array identification procedures.
Officer Michael DeJesus gave Burton a photo array containing six
color photos, arranged in two rows of three. Saunders’s photo was
located in the bottom right-hand corner. The five decoy or filler pho-
tos were taken from a computer program called the "District Court
Tracking System." (This program selects photos from a large database
after the police enter the suspect’s physical characteristics, such as
skin color, height, weight, age, hair style, etc.) The computer gener-
ated five photos of casually dressed African American males in their
twenties, with closely cut hair, a thin mustache, and a medium build.
Significantly, the five filler photos were taken against light back-
grounds with overhead lighting. Saunders’s photo, on the other hand,
was set against a dark background and was taken without overhead
lighting. Saunders’s face therefore appears significantly darker than
the faces of the decoy suspects.
Officer DeJesus did not inform Burton, as required by Baltimore
City police procedures, that the photo array might not contain a photo
UNITED STATES v. SAUNDERS 5
of the suspect. (DeJesus conceded at trial that he never received train-
ing on administering photo arrays, nor had he reviewed the Baltimore
City Police general order on photo array procedures.) In any event,
DeJesus asked Burton whether he recognized from the robbery any of
the persons in the array. Burton studied the six photos for approxi-
mately ten seconds before selecting Saunders’s photo, stating that he
was "[t]he guy who came in[to the store] second." J.A. 80. DeJesus
then provided Burton another six-photo array that included a photo of
Walker. Burton did not identify any of the persons in that array.
Saunders was indicted on one count for being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was charged
with possessing all three of the firearms recovered in his flight path,
beginning with the two at the curb where he exited the minivan.
Saunders moved to suppress the pre-trial photo identification and any
in-court identification by Burton, claiming that his photo in the array
was so suggestive that it violated his right to due process. After the
district court denied the motion, Saunders went to trial and was con-
victed. At sentencing the district court imposed, over Saunders’s
objection, a four-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(5) (2004) for the use of a firearm in connection with
another felony offense. With an adjusted guideline offense level of 28
and a criminal history category of IV, Saunders’s nominal guideline
range was 110-137 months’ imprisonment. Because the maximum
term authorized by statute for a conviction under 18 U.S.C. § 922(g)
is 120 months, Saunders’s actual guideline range was restricted to
110-120 months. See 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1, com-
ment. He was sentenced to a term of 120 months.
Saunders appeals his conviction and sentence. He argues (1) that
the district court erred in denying his motion to suppress the cashier’s
out-of-court and in-court identifications of him; (2) that his constitu-
tional right to a unanimous verdict was violated because the jury was
not provided with a special verdict form requiring unanimous agree-
ment on the particular gun or guns possessed; (3) that there was insuf-
ficient evidence to support his conviction for possession of a firearm;
and (4) that the four-level enhancement under § 2K2.1(b)(5) was
improper because the evidence was insufficient to prove that he par-
ticipated in the Club Paradise robbery. We consider Saunders’s argu-
ments in turn.
6 UNITED STATES v. SAUNDERS
II.
Saunders’s principal argument is that the district court erred in
denying his motion to suppress the out-of-court and in-court identifi-
cations of him by Burton, the cashier. Saunders argues that Burton’s
out-of-court photo identification violated his right to due process
because the photo array was impermissibly suggestive. Burton’s in-
court identification should also have been excluded, he argues,
because it was tainted by the suggestive photo array. The district court
disagreed, concluding that the photo array was not suggestive and that
Burton’s identification did not violate the Due Process Clause. The
district court’s findings as to the factual particulars of Burton’s identi-
fication, which we would review for clear error, are not contested. We
review de novo the court’s legal conclusion as to whether the identifi-
cation violated the Due Process Clause. See United States v. Burgos,
55 F.3d 933, 941 (4th Cir. 1995).
Due process principles prohibit the admission at trial of an out-of-
court identification obtained through procedures "so impermissibly
suggestive as to give rise to a very substantial likelihood of irrepara-
ble misidentification." Simmons v. United States, 390 U.S. 377, 384
(1968). The Due Process Clause is not implicated, however, if the
"identification was sufficiently reliable to preclude the substantial
likelihood of misidentification." United States v. Johnson, 114 F.3d
435, 442 (4th Cir. 1997); see also Manson v. Brathwaite, 432 U.S. 98,
106 (1977) (stating that the central question is "whether under the
totality of the circumstances the identification was reliable even
though the [identification] procedure was suggestive") (internal quo-
tations omitted). The consideration of whether the identification testi-
mony is admissible proceeds in two steps. United States v. Wilkerson,
84 F.3d 692, 695 (4th Cir. 1996) (citing Brathwaite, 432 U.S. at 110).
First, the defendant must show that the photo identification procedure
was impermissibly suggestive.1 Second, if the defendant meets this
burden, a court considers whether the identification was nevertheless
reliable in the context of all of the circumstances. Id. A witness’s out-
1
When the suggestiveness in the procedure does not reach the imper-
missible level, the "potential for error" (or potential for misidentification)
is left for testing "by a course of cross-examination at trial." Simmons,
390 U.S. at 384.
UNITED STATES v. SAUNDERS 7
of-court photo identification that is unreliable and therefore inadmis-
sible on due process grounds also renders as inadmissible his subse-
quent in-court identification. Simmons, 390 U.S. at 383-84; United
States v. Smith, 459 F.3d 1276, 1293-94 (11th Cir. 2006); Amador v.
Quarterman, 458 F.3d 397, 413 (5th Cir. 2006). In this circumstance,
as the Supreme Court has said, the witness "is apt to retain in his
memory the image of the photograph rather than the person actually
seen, reducing the trustworthiness of subsequent . . . courtroom identi-
fication." Simmons, 390 U.S. at 383-84.
A.
We conclude — based on the particular facts and circumstances
presented here — that the six-photo array shown to the witness Bur-
ton was impermissibly suggestive for two reasons. First, Saunders’s
photo looked strikingly different from the five filler photos, consid-
ered as a group. Second, the effect of this jarring disparity was exac-
erbated by the failure of the police to follow their own internal
procedures, which require that certain precautions be taken before a
photo array is shown to a witness. We will discuss each of these con-
cerns.
Saunders’s photo stood out sharply from the others in the array.
The dark background and lack of overhead lighting in Saunders’s
photo distinguished it from the remaining five photos, all of which
had light backgrounds and overhead lighting. See United States v.
Wiseman, 172 F.3d 1196, 1209 (10th Cir. 1999) ("[D]ifferences such
as background color can make a picture stand out, and can act to
repeatedly draw a witness’s eye to that picture.") (citation omitted);
Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003) (a photo
that stands out from the others "implicitly suggests to the witness that
‘this is the man’"). We recognize that there may be differences in
background and lighting among the various photos in an array, and
such differences do not automatically create impermissible sugges-
tiveness. The risk of suggestiveness comes when one photo stands
out, as Saunders’s did here.
The differences that caused Saunders’s photo to stand out were
quite marked, yielding potentially problematic consequences. The
dark background and lack of lighting in Saunders’s photo gave him
8 UNITED STATES v. SAUNDERS
a menacing countenance that was lacking in the men in the other five
photos. In addition, the fact that Saunders’s photo differed signifi-
cantly from the others as a group could have suggested to a viewer
that Saunders’s photo was taken at a different time and place than the
rest. Cf. Johnston v. Makowski, 823 F.2d 387, 391 (10th Cir. 1987)
(concluding that photo array was impermissibly suggestive because
defendant’s "picture obviously was newly taken, whereas the other
pictures were visibly older"). Specifically, there is a risk that the
viewer may conclude "that the similar pictures were taken together to
form a pool or control group, and that the one picture that stands out
is the suspect." United States v. Sanchez, 24 F.3d 1259, 1262-63 (10th
Cir. 1994).2
The suggestive nature of the photo array was exacerbated here by
the failure of the police to take precautions that would have reduced
the risk of a tainted identification. On the way to the station house the
police informed Burton that they had arrested one or more suspects
in the robbery. Imparting this information to the witness can lead him
to assume that a photo of the arrested person will be in the array. The
witness, moreover, can feel pressure to make an identification, even
if he is not fully confident, for fear of jeopardizing the case against
the arrested suspect. Cf. Simmons, 390 U.S. at 383 (stating that the
"chance of misidentification is also heightened if the police indicate
to the witness that they have other evidence that one of the persons
pictured committed the crime"); Grubbs v. Hannigan, 982 F.2d 1483,
1490 (10th Cir. 1993) (stating that the distinct characteristics of the
suspect’s photo were highlighted by the fact that the police had
informed the witness that they had a suspect in custody).
2
We in no way imply that the array was intentionally assembled in a
suggestive manner. Nor do we question the government’s explanation as
to how it was created. We merely note that the photo technology avail-
able today provides the capability to assemble a set of filler photos that
would minimize disparities as dramatic as these. Moreover, Saunders
was in custody, so better care could have been taken in arranging the
background and lighting conditions for his photo. Cf. Neil v. Biggers,
409 U.S. 188, 198 (1972) (stating that "unnecessarily suggestive [identi-
fication procedures] are condemned for the further reason that the
increased chance of misidentification is gratuitous").
UNITED STATES v. SAUNDERS 9
To mitigate just this risk, the Baltimore City Police Department’s
general order on photo array procedures has a provision aimed at
avoiding improper influence on a witness who might know or believe
that a suspect is in custody. The order requires the police to instruct
the witness that the array may not contain a photo of the person under
investigation. This instruction was not given to the witness Burton in
this case.
We note parenthetically that there may be unavoidable circum-
stances when the police will not have the opportunity to eliminate or
minimize suggestive differences between the group of filler photos in
an array and the suspect’s. For example, the suspect may not be in
custody (unlike Saunders here), and the police may have to arrange
an array using a photo of the suspect that was taken under conditions
beyond their control. Even then, however, taking practical precau-
tions, such as giving the instruction required by the general order gov-
erning Baltimore police, can help to mitigate the effect of suggestive
disparities that are unavoidable. See Wiseman, 172 F.3d at 1209 (not-
ing that the manner of presentation and number of photos can "dilute
the ‘suggestive irregularities’ of the array"). Of course, even when
suggestiveness is not sufficiently mitigated, an otherwise reliable
identification is still admissible.
Our decision on the suggestiveness issue is based on the facts.
Given both the starkness of the disparity between Saunders’s photo
and the group of filler photos, and the failure of the police to mitigate
the effects of this disparity, we must conclude that the photo array
was impermissibly suggestive. Our analysis of the admissibility of
Burton’s identification of Saunders thus moves to the next step.
B.
An out-of-court identification from an impermissibly suggestive
photo array may nevertheless be admitted at trial if the identification
can be deemed reliable. The following five factors are considered in
assessing the reliability of such an out-of-court identification: (1) the
witness’s opportunity to view the suspect at the time of the crime; (2)
the witness’s degree of attention at the time; (3) the accuracy of the
witness’s initial description of the suspect; (4) the witness’s level of
certainty in making the identification; and (5) the length of time
10 UNITED STATES v. SAUNDERS
between the crime and the identification. Johnson, 114 F.3d at 441
(citing Neil v. Biggers, 409 U.S. at 199-200). In addition, courts may
"consider other evidence of the defendant’s guilt when assessing the
reliability of the . . . identification." Wilkerson, 84 F.3d at 695.
The first two factors — opportunity to see the suspect and degree
of attention — indicate that the identification here was reliable. Bur-
ton had a good opportunity to view Saunders during the robbery. Bur-
ton testified that Saunders "came in the door, he opened the door, he
came in, and he walked directly toward the [cashier’s] window, which
is when me and him made eye contact." J.A. 135. Saunders stopped
just a few feet from Burton, and the two had the eye contact for
"about three to four seconds, maybe a little longer." J.A. 136-37. Bur-
ton explained that he paid attention to Saunders as he entered the store
because he has a habit of "always look[ing] at the next person that’s
coming in just to see who they are and if something might occur."
J.A. 137. After his initial observation of Saunders, Burton turned
away for a moment to help a customer. As he turned back, he saw
Saunders patting down the store’s security guard. At this point, when
Burton had a greater incentive to observe Saunders, he had a clear
view of the side of Saunders’s face. See Mysholowsky v. New York,
535 F.2d 194, 197 (2d Cir. 1976) (stating that a victim of a crime is
more likely than a casual bystander to pay close attention to the crimi-
nal’s appearance); Levasseur v. Pepe, 70 F.3d 187, 195 (1st Cir.
1995) (stating that a victim’s "degree of attention during a traumatic
experience is presumed to have been acute"). In short, Burton had a
sufficient opportunity to observe Saunders and to form a reliable rec-
ollection of what he looked like.
The third factor, the accuracy of the witness’s initial description,
weighs in favor of a reliable identification. Burton’s description of
Saunders was generally accurate. Burton described Saunders to the
police as a black male of "medium build, medium height," J.A. 78,
which he later defined as 5’7" and 160-170 pounds. He said that
Saunders wore a black "hipster" leather jacket and jeans and that he
had closely trimmed hair and a "slight mustache." J.A. 77-78. Bur-
ton’s description of Saunders’s weight, haircut, mustache, and leather
jacket was accurate. Burton’s initial statement that Saunders was of
medium height was also accurate, even though Burton later underesti-
mated Saunders’s height by about four inches. The only other minor
UNITED STATES v. SAUNDERS 11
inaccuracy is that Saunders was not wearing jeans as Burton reported,
but gray sweatpants. All in all, Burton’s description of Saunders,
which was flawless in several important particulars, was accurate.
The last two factors — level of certainty in the identification and
time between the crime and the identification — support a conclusion
that the identification was reliable. Burton did not hesitate when
selecting Saunders’s photo from the array. Burton testified, "I looked,
I gave a good look at the picture to make sure, and pointed to him."
J.A. 166. Burton’s inability to identify the photo of Walker, another
robber, from the second array also indicates that Burton would not
have identified Saunders if he had not been confident that he recog-
nized him from the robbery. Furthermore, Burton made the photo
identification of Saunders only two hours after the robbery occurred,
when his recollection of the crime was still fresh. See Albert v. Mont-
gomery, 732 F.2d 865, 872 (11th Cir. 1984) (stating that the two-day
period between the attack and the identification supported finding of
reliability); United States v. Evans, 484 F.2d 1178, 1185 (2d Cir.
1973) (stating that photo identification several hours after the robbery
occurred indicated that the identification was reliable).
The reliability of the out-of-court identification is further supported
by other evidence that connects Saunders to the Club Paradise rob-
bery. See Wilkerson, 84 F.3d at 695 (stating that the court may con-
sider other evidence of the defendant’s guilt when determining the
reliability of an identification). First, Saunders was arrested as he fled
from a van, which matched the description of the getaway vehicle, six
blocks from Club Paradise shortly after the robbery occurred. Second,
Officer Gomez observed Saunders toss a gun to the ground as he tried
to escape; two other guns were recovered from the spot where
Saunders got out of the van. Finally, Saunders’s leather jacket and his
physical characteristics generally matched Burton’s description of one
of the three robbers.
C.
In sum, although the photo array was impermissibly suggestive,
Burton’s identification of Saunders was reliable under the circum-
stances. Burton had sufficient opportunity to view Saunders during
the robbery; his initial description of Saunders was generally accu-
12 UNITED STATES v. SAUNDERS
rate; the photo identification took place shortly after the robbery when
Burton’s recollection was fresh; and there is other evidence connect-
ing Saunders to the robbery at Club Paradise. Accordingly, the admis-
sion of evidence of the out-of-court identification did not violate
Saunders’s right to due process; nor did it taint the in-court identifica-
tion.
III.
Saunders claims that his constitutional right to a unanimous jury
was violated because the jury was not given a special verdict form
that would have allowed it to indicate whether it had reached unani-
mous agreement on his possession of one or more of the specific guns
listed in the indictment. He contends that the use of a general verdict
form and the return of a "general verdict make[ ] it impossible to tell
whether the jurors were unanimous with regard to [a specific gun]
upon which their verdict was based." Appellant’s Br. at 29.
The district court agreed with Saunders that the jury had to agree
unanimously on the particular gun possessed in order to return a
guilty verdict. For this reason, the district court indicated it would
issue a special verdict form to the jury. Due to an administrative error,
however, the jury never received the special verdict form.
The government does not contend that juror unanimity with respect
to the specific gun possessed is not required for a conviction under
18 U.S.C. § 922(g)(1). Rather, it contends that the use of a general
verdict form, coupled with the court’s instruction that the jury had to
be unanimous as to the gun or guns possessed, was adequate. We
assume, without deciding, that a conviction under § 922(g)(1)
requires the jury to agree unanimously on the specific gun possessed
by the defendant. Cf. United States v. Theodoropoulos, 866 F.2d 587,
597 (3d Cir. 1989) (stating that district court "properly instructed the
jury that they must unanimously agree on which weapon" the defen-
dant had used to convict him under § 924(c)).3 Any right Saunders
3
Several circuits have concluded that a conviction under § 922(g) does
not require juror unanimity on the specific gun possessed. See United
States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004); United States v.
Verrecchia, 196 F.3d 294, 301 (1st Cir. 1999); cf. United States v.
Correa-Ventura, 6 F.3d 1070, 1087 (5th Cir. 1993) (stating that jury does
not need to unanimously agree on the specific firearm to convict under
§ 924(c)).
UNITED STATES v. SAUNDERS 13
had to a unanimous jury with respect to the specific gun or guns
involved was not violated because the district court properly
instructed the jury on the unanimity requirement. The court stated,
You must also agree, all of you, that [Saunders] possessed
the same firearm. You cannot convict, for example, if six of
you believe he possessed one of the guns, and six of you
believe he possessed another of the guns. You have to unan-
imously agree that he possessed the firearms charged or, as
I said, one of the firearms charged before he can be con-
victed.
J.A. 558. This instruction was clear in requiring a unanimous finding
with respect to the possession of at least one of the firearms charged.
We must assume that the jury followed this instruction, see United
States v. Pierce, 479 F.3d 546, 552 (8th Cir. 2007), and that it unani-
mously agreed that Saunders possessed at least one specific gun listed
in the indictment. Thus, the use of a general verdict form did not vio-
late Saunders’s right to a unanimous jury. See United States v. Rus-
sell, 134 F.3d 171, 177 n.2 (3d Cir. 1998) (noting that the district
court did not need to provide a special verdict form in addition to a
specific unanimity instruction).
IV.
Saunders claims that the evidence was insufficient to convict him
under 18 U.S.C. § 922(g)(1) as a felon in possession of a firearm.
Saunders stipulated at trial that he had a prior felony conviction and
that the recovered firearms had traveled in interstate commerce.
Accordingly, he only challenges the jury’s finding that he possessed
one or more of the firearms identified in the indictment. We must
uphold the jury’s verdict "if there is substantial evidence, taking the
view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942).
There was substantial evidence to support a jury’s finding that
Saunders was in possession of at least one firearm. First, Burton testi-
fied that Saunders was one of the men who participated in the robbery
at the Club Paradise liquor store and that Saunders was carrying a
"shiny" gun. J.A. 138. Burton’s testimony was corroborated by the
14 UNITED STATES v. SAUNDERS
fact that Saunders was caught minutes later after he jumped out of a
van matching the description of the getaway vehicle that Burton gave
to the 911 dispatcher. Second, Officer Gomez saw a gun fall to the
ground as Saunders jumped out of the van. The police later recovered
two handguns (a black Bryco nine millimeter and a silver Smith &
Wesson nine millimeter) from the spot where the van had been
stopped by police. The Smith & Wesson matches Burton’s description
of the gun that Saunders carried during the robbery. Third, Officer
Gomez watched Saunders toss a dark object to the ground as he ran
through a vacant lot. After Saunders was arrested, Gomez returned to
the lot and recovered a black Tanfoglio .380 caliber semi-automatic
handgun. Saunders had purchased Winchester .380 ammunition, the
same type found in the Tanfoglio, several months prior to the robbery.
This evidence allowed the jury to find that Saunders possessed one of
the three guns listed in the indictment.
V.
Saunders’s final argument relates to his sentence. He contends that
the district court erred in imposing a four-level enhancement under
U.S.S.G. § 2K2.1(b)(5) (2004) because Saunders used a firearm in
connection with another felony offense, a robbery. Specifically,
Saunders contends that "the evidence was insufficient to support a
finding that [he] was involved in the robbery" at the Club Paradise
liquor store. Appellant’s Br. at 37. This argument fails completely. As
our discussion in parts II and IV make clear, the evidence was suffi-
cient to establish that Saunders participated in the robbery. The
§ 2K2.1(b)(5) enhancement is therefore amply supported by the evi-
dence.
***
Rodney Saunders’s conviction and sentence are
AFFIRMED.