IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20593
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNELL SCHOOD BENNETT, also
known as Donnell Schrood Bennett,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
USDC No. H-96-CR-193-3
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July 27, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
I
Donnell Schood Bennett was convicted after a jury trial of
aiding and abetting bank robbery, conspiracy to use and carry a
firearm during the commission of a crime of violence, and aiding
and abetting using and carrying a firearm during the commission of
a crime of violence. He was sentenced to two terms of fifty-seven
months’ imprisonment on counts one and two, to be served
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
concurrently, and a term of sixty months’ imprisonment on count
three, to be served consecutively, for a total of 117 months’
imprisonment. Bennett filed a timely notice of appeal from the
judgment of conviction.
II
A
Bennett argues that the evidence was insufficient to support
his convictions for aiding and abetting bank robbery, conspiring to
use and carry a firearm during a crime of violence, and aiding and
abetting using and carrying a firearm during a crime of violence.
He contends that the testimony of his codefendant that he had a gun
and was present when discussions were had concerning the bank
robbery was not credible. He further contends that there is no
evidence that he used a firearm as defined by the Supreme Court in
Bailey v. United States, 516 U.S. 137 (1996). Finally, with regard
to his conspiracy conviction, Bennett argues that there is no
evidence of any agreement on his part to use and carry a firearm
during a bank robbery.
B
Doctory Hampton, Bennett’s codefendant, testified at trial
that he, Marcus Campbell, an unidentified juvenile, and Bennett
discussed robbing the Lone Star Bank at Campbell’s home one week
prior to the robbery. Hampton testified that he was supposed to
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neutralize the security guard, that Campbell was supposed to hold
down the “lobby area,” and that Bennett and the juvenile were
supposed to then come inside and get the money. Hampton stated
that all four of them were supposed to have firearms.
Hampton testified that the four men met at Campbell’s house
again on the day of the robbery and that Campbell gave each of them
a gun. He stated that Campbell gave Bennett a “small revolver.”
Hampton testified that they left a van in a nearby parking lot
and traveled to the bank in a stolen Buick Regal. Hampton
testified that Bennett had his firearm “in [his] pants” with his
“shirt on the outside.” He stated that he and Campbell entered the
bank first and that Bennett and the juvenile were supposed to come
in a “minute or two later.”
Hampton testified that once he and Campbell entered the bank,
they pulled their guns on the security guard; a struggle ensued and
Campbell shot the guard. Campbell and Hampton ran out of the bank
and got in the car. Hampton testified that Campbell asked Bennett
and the juvenile why they did not come inside the bank and Bennett
responded that “a lady in a red truck” was watching them. The four
men returned to the van and drove it to the home of a friend of
Campbell’s, where Campbell collected the guns from Bennett and the
juvenile.
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Viewing the evidence in the light most favorable to the
Government and drawing all reasonable inferences in favor of the
verdict, the evidence is sufficient to support Bennett’s
convictions. The evidence shows that Bennett was present during a
discussion concerning the planning of the bank robbery, that his
role in the robbery was planned during this discussion, that he
accompanied his three codefendants to the bank in a stolen car,
that he was in possession of a firearm when he accompanied them to
the bank, and that he stated to his codefendant that he did not
enter the bank as planned because he was being watched by someone.
Although Bennett argues that Hampton’s testimony conflicted with
other trial testimony, the jury apparently resolved any conflicting
testimony in favor of the government. See Martinez, 975 F.2d at
161.
C
With regard to the firearm offenses, Bennett nevertheless
contends that there is no evidence that he used a firearm as
defined by the Supreme Court in Bailey. He further contends that
there is no evidence of any agreement on his part to use and carry
a firearm during a bank robbery.
Even if the evidence is insufficient to show active employment
of a firearm by Bennett, his conviction for aiding and abetting
using and carrying a firearm during the commission of a crime of
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violence may nevertheless be upheld if he satisfied the carrying
prong of § 924(c)(1). See United States v. Rivas, 85 F.3d 193, 195
(5th Cir.), cert. denied, 117 S.Ct. 593 (1996). Testimony
demonstrated that Bennett was given a firearm by Campbell
immediately before the robbery, that he carried the gun with him in
his pants during the robbery, and that he was still in possession
of the gun after the robbery. Bennett’s knowing possession of the
firearm in the car during the bank robbery satisfies the carrying
requirement of § 924(c). See id. at 195-96. Further, Bennett’s
acceptance of the firearm from Campbell and knowing possession of
it during the robbery indicates that he voluntarily entered into an
agreement to commit the crime. See Fletcher, 121 F.3d at 196.
Based upon the evidence, a reasonable trier of fact could have
found Bennett guilty beyond a reasonable doubt.
IV
Bennett argues that the district court erred by sentencing him
to a sixty-month consecutive sentence for the offense of using and
carrying a firearm in relation to a crime of violence. He contends
that the evidence was insufficient to support his conviction under
§ 924(c).
As discussed above, however, the evidence was sufficient to
support Bennett’s conviction. Further, § 924(c)(1) provides that
the five-year sentence for violating that section shall not run
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concurrently with any other term of imprisonment, including that
imposed for the predicate crime of violence. This issue is
therefore without merit.
V
For the reasons stated herein, the judgment of the district
court is
A F F I R M E D.
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