United States v. Ronald A. Lank

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No. 96-2261
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Ronald August Lank, also known *
as Paul Robert Sass, also *
known as Kevin Mannell, *
*
Appellant. *

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Submitted: November 19, 1996

Filed: March 11, 1997
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Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS
SHEPPARD ARNOLD, Circuit Judge.

___________

HENLEY, Senior Circuit Judge.

Ronald A. Lank appeals from a judgment of the district court1 entered
upon a jury verdict finding him guilty of armed bank robbery and interstate
transportation of a stolen vehicle in violation of 18 U.S.C. §§ 2113,
2312. We affirm.

On January 18, 1995, Lank robbed a bank in Texas. He was apprehended
later that day after officers on horseback found him in a wooded area.
After he was arrested, he signed Miranda2 waivers and confessed not only
to the Texas robbery, but also admitted that

1
The Honorable Scott O. Wright, United States Senior District
Judge for the Western District of Missouri.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
on January 9, 1995, he robbed the Central Bank in Holts Summit, Missouri
and on January 7, 1995, in Tennessee stole a car, which he used in the
Missouri robbery.

Although Lank pleaded guilty to the Texas robbery, he pleaded not
guilty to the Central Bank robbery and transportation charges. Before
trial on the charges, Lank moved to suppress the statements he made
following his Texas arrest. He also moved to suppress the pre-trial
identifications of three Central Bank employees. Following a suppression
hearing, the district court denied the motions, and the statements and
identifications were introduced at trial. In addition, at trial the three
employees identified Lank as the robber.

Based on a total offense level of 27 and a criminal history category
of VI, the presentence report recommended a sentencing range of 130 to 162
months. The district court, imposing an obstruction of justice enhancement
under U.S.S.G. § 3C1.1 and granting the government's motion for an upward
departure under U.S.S.G § 4A1.3, sentenced Lank to 210 months imprisonment
on the robbery conviction and a concurrent 120 months on the unlawful
transportation conviction, to be served consecutively to a 105- month
sentence imposed for the Texas bank robbery.

On appeal Lank first argues that the district court erred in failing
to grant his pretrial motion to suppress the statements. His argument is
without merit. Although at the suppression hearing Lank testified that he
gave the statements only because he had been beaten, dragged behind a
horse, and threatened, the district court rejected his testimony, finding
it was incredible. We do not disturb this credibility finding. Not only
did the district court note that Lank's testimony conflicted with the
suppression hearing testimony of four law enforcement officers, but also
that it conflicted with Lank's statements under oath at his Texas guilty
plea hearing.

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 Lank also argues that the district court erred in failing to grant
his motion to suppress the identifications of the three Central Bank
employees. He asserts that pretrial displays of his photograph were unduly
suggestive and tainted the in-court identifications. We disagree. Even
assuming that the pretrial displays were unduly suggestive, as the district
court found, in the totality of the circumstances, the displays did not
create a "'very substantial likelihood of irreparable misidentification.'"
United States v. Patterson, 20 F.3d 801, 806 (8th Cir.) (quoting Manson v.
Brathwaite, 432 U.S. 98, 116 (1977)), cert. denied, 115 S. Ct. 137 (1994).
Jennifer Morff, a teller who waited on Lank, testified that she was with
him for about ten minutes and was so close that she could have "reached out
and touched him." Shortly after the robbery, Morff, who had training in
identifying bank robbers, gave police officers a detailed description and
assisted in a composite drawing. When the police came to her home later
that evening with photos of Lank, Morff was "absolutely positive" of her
identification of Lank. Paula Walker, another teller who assisted in
waiting on Lank and had "a good look" at him, also gave responding officers
a detailed description of Lank. When Walker was shown photos of Lank three
days later, she was "one hundred percent" certain the person in the photos
was the person who robbed the bank. Linda Jansen, who had training in
identifying bank robbers, testified that when she saw photos of Lank the
night of the robbery she was "absolutely sure" he was the robber. In this
case, "in light of the witnesses' opportunities to observe [Lank], their
attentiveness at the time, the accuracy of the original descriptions, the
level of certainty demonstrated in their identifications, and the
relatively short period[s] of time between when they observed [Lank] and
when they identified [his] picture[s]," the displays "did not create a very
substantial likelihood of irreparable misidentification." Id. at 807.

Lank also challenges his sentence. He first argues that the

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district court erred in imposing a two-level enhancement for obstruction
of justice under U.S.S.G. § 3C1.1 based on the court's finding that Lank
had committed perjury at the suppression hearing. "A defendant is subject
to an obstruction of justice enhancement under U.S.S.G. § 3C1.1 if he
testifies falsely under oath in regard to a material matter and does so
willfully rather than out of confusion or mistake." United States v.
Chadwick, 44 F.3d 713, 715 (8th Cir. 1995) (per curiam). "Such an
enhancement is warranted if the perjury occurs at a suppression hearing."
Id. "We reverse a district court's factual findings in support of a
section 3C1.1 enhancement only if they are clearly erroneous." United
States v. Gleason, 25 F.3d 605, 608 (8th Cir.), cert. denied, 115 S. Ct.
283 (1994). In this case, the district court did not err. As previously
noted, not only did Lank's suppression hearing testimony conflict with that
of four law enforcement officers, it also conflicted with his statements
under oath at his guilty plea hearing in Texas. In response to the plea
court's inquiry whether there was anything to suggest that his "right to
not be forced to make an involuntary statement" had been violated, Lank
responded, "No, your honor."

Lank also argues that the district court abused its discretion in
granting the government's motion to depart upward under U.S.S.G. § 4A1.3,
which provides for an upward departure "[i]f reliable information indicates
that the criminal history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or the likelihood that
the defendant will commit other crimes." The district court did not abuse
its discretion. Among other things, the court noted that Lank's criminal
history score of 19 was "well above the 13-point threshold for Category
VI," the highest criminal history category. See United States v. Nomeland,
7 F.3d 744, 747 (8th Cir. 1993). The court also noted that Lank's
offenses, which ranged from forgery to armed bank robbery, had increased
in seriousness and that Lank had used drugs while in custody awaiting
trial. In sum, the district court concluded that

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there was "no way" that Lank would ever "straighten out." In these
circumstances, "the court did not err in determining that an unrepentant,
incorrigible recidivist, who poses a significant threat to the safety of
the community, should have a sentence imposed which is more severe than
that described by the sentencing guidelines." United States v. Saffeels,
39 F.3d 833, 839 (8th Cir. 1994) (internal quotation omitted); see also
United States v. Poe, 96 F.3d 333, 334 (8th Cir. 1996) (§ 4A1.3 departure
warranted because of appellant's "pattern of continually criminal
3
behavior") (internal quotation omitted).

Accordingly, the judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

3
On appeal Lank does not contest the reasonableness of the
extent of the departure, see Saffeels, 39 F.3d at 838, and we
therefore do not address it.

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