Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-19-2008
USA v. Coleman
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2742
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________
No.07-2742
_________
UNITED STATES OF AMERICA
v.
ANDRE COLEMAN,
Appellant
___________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
Criminal No. 05-cr-00295-2
(District Judge: The Honorable R. Barclay Surrick)
__________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 27, 2008
Before: McKEE, NYGAARD and MICHEL* Circuit Judges
(Filed: November 19, 2008)
*
Honorable Paul R. Michel, Chief Judge for the United States Court of Appeals for the
Federal Circuit, sitting by designation..
OPINION OF THE COURT
McKEE, Circuit Judge
Andre Coleman appeals the judgment of conviction and sentence that was entered in the
district court. For the reasons that follow, we will affirm.
I.
Because we write primarily for the parties, it is not necessary to recite the facts or history
of this case except insofar as may be helpful to our brief discussion. Coleman argues that his
conviction and sentence must be reversed because (1) the district court erroneously denied his
motion to suppress the physical evidence, (2) the evidence was insufficient to support the jury’s
determination that the banks were federally insured, and (3) the sentence of 360 months was
unreasonable.
The district court correctly concluded that the initial stop of Coleman’s car was justified
because his windows were tinted in violation of the Pennsylvania Motor Vehicle Code. 75 Pa.
Cons. Stat. Ann. § 4524(e). See, United States v. Bonner, 363 F.2d 213, 216 (3d Cir. 2004).
Coleman claims that the police lacked reasonable suspicion to detain him after they inspected his
driver’s license and vehicle registration. However, an officer may conduct further investigation
where the initial lawful stop gives rise to a “reasonable, articulable suspicion of criminal activity”
based on the totality of the circumstances. United States v. Givan, 320 F.3d 452, 458 (3d Cir.
2003) (citing United States v. Johnson, 285 F.3d 744, 749 (8th Cir. 2002)). Here, the police had
reasonable suspicion to extend the detention. The police heard “flash information” describing a
Black female wearing a pink shirt and a Black male traveling in a black Lexus sedan with tinted
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windows. The officer spotted Coleman’s black sedan with tinted windows just minutes after the
“flash information,” in proximity to the robbery scene. Upon approaching the car, police
observed that the car contained a Black male driver and a Black female passenger wearing a pink
shirt. Thus, they had the reasonable suspicion required for a brief detention.
Coleman relies on United States v. Kithcart, 134 F.3d 529 (3d Cir. 1998), in arguing that
imprecise car descriptions standing alone can not justify a Terry stop. However, the trial court
properly distinguished Kithcart. In Kithcart, we discussed whether “probable cause” existed for
an arrest. The issue here is not probable cause for an arrest, but reasonable suspicion for a brief
stop and investigation pursuant to Terry. That is a less demanding inquiry. Bonner, 363 F.3d at
217. We conclude that the totality of the circumstances here gave rise to the required reasonable
suspicion. Accordingly, Coleman’s suppression motion was properly denied.
II.
Coleman argues that the government failed to prove beyond a reasonable doubt that the
banks were insured by the Federal Deposit Insurance Corporation. To sustain a conviction for
bank robbery or attempted bank robbery under § 2113(a), the government must prove beyond a
reasonable doubt that the bank’s deposits were insured by the FDIC. 28 U.S.C. § 2113(a); United
States v. Spinello, 265 F.3d 150, 155 (3d Cir. 2001) (explaining that § 2113(a) covers banks
insured by the FDIC or members of the Federal Reserve). Here, the government offered
testimony of officers from both PNC Bank and Univest National Bank and received the bank’s
current FDIC certificates into evidence. Coleman attacks the PNC Bank certificate because it
lists “Pittsburgh, Pennsylvania” as the bank’s location. The PNC Bank officer explained that the
FDIC certificate lists the location of the bank’s main office, but extends to all branches.
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Accordingly, Coleman’s jurisdictional challenge is frivolous.
III.
Finally, Coleman argues that the sentence of 360 months was unreasonable. He argues
that he was less culpable than his son, who plead guilty, testified against him, and received a
sentence of 36 months in custody. Additionally, Coleman points to the Pre-Sentence
Investigation Report that disclosed his tough upbringing and substance abuse problems. The
sentence that the court imposed was at the bottom of the applicable guideline range.
The party challenging the sentence bears the burden of proving its unreasonableness.
United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (citing United States v. Cooper, 437
F.3d 324, 332 (3d Cir. 2006)). Given Coleman’s status as a career offender and the serious
nature of the crimes, which included robbery and attempted robbery, the district court’s sentence
was reasonable. This is particularly true when we consider that Coleman involved his own son in
these very serious crimes rather than offering the kind of support and guidance that would have
helped his son avoid a criminal career.
IV.
For all of the above reasons, we will affirm the judgment of sentence.
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