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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10273
________________________
D.C. Docket No. 3:14-cr-00153-MMH-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH LAMAR ELLINGTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 23, 2018)
Before ED CARNES, Chief Judge, NEWSOM, and SILER, * Circuit Judges.
PER CURIAM:
After a jury trial, Kenneth Ellington was convicted of two counts of bank
robbery by intimidation under 18 U.S.C. § 2113(a). The district court sentenced
him to 180 months in prison. He challenges his convictions and sentence.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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I. FACTS AND PROCEDURAL HISTORY
On April 9, 2014, a man robbed TD Bank and, a few hours later, First
Federal Bank. The banks are located about six blocks apart in Live Oak, Florida.
The tellers at both banks gave similar descriptions of the robber: a black male,
about six-feet tall, slender, and wearing a black long-sleeved shirt or jacket, a red,
green, and yellow Bob Marley-style hat, and a beard and dreadlocks that appeared
fake. Surveillance photos from each bank confirm that description.
The robber committed both crimes in similar fashion. In the robbery at TD
Bank, he walked in, approached a teller, and slid a book across the counter (no
screen or barrier separated the robber and the teller). A demand note was on top of
that book. The teller was so frightened that she read only the part of the note that
said “give me your money.” The robber told her to “hurry” several times and
reached down in front of him as though he had a gun, prompting the teller to give
him about $1,000 in cash and a dye pack. The robber left the bank, and an
employee saw him run north up the street toward a real estate agency and then
throw something down on the ground after the dye pack exploded.
Two or three hours later, the robber walked into First Federal Bank,
approached a teller (a glass window separated them), handed her a note demanding
money, and told her to “hurry up so no one will get hurt.” The teller was scared
2
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and gave him about $4,000 in cash. The robber left the bank and went across the
street toward the parking lot of a Kentucky Fried Chicken restaurant.
Police officers collected evidence of the robberies from each bank. Just
north of the TD Bank, near the real estate agency, the police found $915 in cash
scattered on the ground, a demand note, 1 a book, and an exploded dye pack. The
police spoke to a Kentucky Fried Chicken employee who had observed a black
Dodge Charger parked in the restaurant’s parking lot the morning of the robbery.
Later that day, the car was gone but there was a garbage bag where the car had
been. The police recovered the bag, which contained a fake beard, a Bob Marley-
style hat with dreadlocks, and a black long-sleeved t-shirt.
The police sent that evidence to the state crime lab for analysis. Two days
after the robbery, a crime lab analyst developed a fingerprint off the book the
robber used in the TD Bank robbery and determined that the print belonged to
Kenneth Ellington.2 The analyst forwarded that information to the Live Oak
Police Department, and the detective investigating the case pulled Ellington’s
driver’s license information and photo from a driver and vehicle information
database. The database showed that Ellington lived in Quincy, Florida — about
100 miles from Live Oak — and that he owned a black Dodge Charger. The
1
The first line of the demand note read “All the money,” and the second line read
“Hundreds Fifties twenties only.”
2
The analyst determined that the book fingerprint belonged to Ellington by running the
print through the federal Integrated Automated Fingerprint Identification System database.
3
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detective also saw that Ellington resembled the robber in the First Federal Bank
surveillance photo. Based on that information, he obtained arrest warrants for
Ellington.
On April 14, 2014, Ellington was arrested in Quincy while driving his black
Dodge Charger. Two days later he was transferred to Live Oak, where officers
obtained his fingerprints and a DNA sample. Crime lab analysts determined that a
fingerprint on the garbage bag found at the Kentucky Fried Chicken matched
Ellington’s left ring finger and that the DNA on the robber’s hat, beard, and shirt
matched Ellington’s DNA. 3
A grand jury indicted Ellington on two counts of robbery by intimidation
under 18 U.S.C. § 2113(a). He did not testify or present any evidence during the
three-day jury trial, and the district court denied his motion for judgment of
acquittal based on insufficient evidence. The jury found Ellington guilty on both
counts. The court sentenced him to 180 months in prison. This is his appeal.
II. DISCUSSION
A. Sufficiency of the Evidence Challenge
3
The crime lab used the Combined DNA Index System to determine that DNA evidence
obtained from the robbery belonged to Ellington. The government, at the request of Ellington’s
counsel, agreed to not disclose to the jury that Ellington was already in that database and the
fingerprint database.
4
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Ellington first contends that the evidence was insufficient to convict him of
robbery by intimidation under 18 U.S.C. § 2113(a). “We review de novo the
sufficiency of the evidence presented at trial, and we will not disturb a guilty
verdict unless, given the evidence in the record, no trier of fact could have found
guilt beyond a reasonable doubt.” United States v. White, 663 F.3d 1207, 1213
(11th Cir. 2011) (quotation marks omitted). “In reviewing the sufficiency of the
evidence, we look at the record in the light most favorable to the verdict and draw
all reasonable inferences and resolve all questions of credibility in its favor.” Id.
(quotation marks omitted).4
There was more than enough evidence for a reasonable juror to find
Ellington guilty of bank robbery by intimidation which, unsurprisingly, means
taking money belonging to a bank “by intimidation” and “from the person or
4
In addition to his sufficiency challenge, Ellington argues that Sixth Amendment and
Brady violations, as well as chain-of-custody problems, require reversal. His argument that the
government violated the Sixth Amendment’s Confrontation Clause by not giving him the
opportunity to confront the fingerprint analyst who compiled a compact disc of the fingerprint
evidence fails because that analyst turned that CD over to the defense, testified at trial, and was
subject to cross-examination. See United States v. Baptista-Rodriguez, 17 F.3d 1354, 1366 (11th
Cir. 1994) (“The main and essential purpose of confrontation is to secure for the [defendant] the
opportunity of cross-examination.”). His Brady claims fail because the government turned over
the allegedly non-disclosed evidence (a DNA report and fingerprint evidence) and the
government could not turn over the TD Bank surveillance video because the bank never gave it
to the government. See United States v. Brester, 786 F.3d 1335, 1339 (11th Cir. 2015) (stating
that a defendant must “prove that the prosecution withheld favorable evidence” to establish a
Brady violation). Finally, his chain-of-custody argument is deemed abandoned because he cites
no authority to support it. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014) (“We have long held that an appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without supporting arguments and
authority.”).
5
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presence of another.” 5 18 U.S.C. § 2113(a). Both tellers testified that the robber
approached them and slid or handed a demand note across the counter. That
satisfies the “person or presence” requirement. See id. As for intimidation, the
teller at the TD Bank believed that the robber had a gun and he told the First
Federal Bank teller to hurry so that no one would get hurt. That is enough to
establish intimidation. See United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir.
2005) (stating that “intimidation occurs when an ordinary person in the teller’s
position reasonably could infer a threat of bodily harm from the defendant’s acts,”
and concluding that intimidation element was satisfied even though the robbers did
not display a gun); United States v. Graham, 931 F.2d 1442, 1442–43 (11th Cir.
1991) (concluding that intimidation element was satisfied where the defendant
gave the teller a demand note, glared at her, and the teller testified that she was
afraid). And there is no dispute that the robber took money belonging to the banks.
There was also enough evidence for a reasonable juror to conclude that
Ellington committed the robberies. The tellers working at the banks gave similar
descriptions of the robber, which the bank surveillance photos confirmed: a
slender black male with a beard and dreadlocks that looked fake, wearing a dark
long-sleeved shirt or jacket and a red, green, and yellow Bob Marley-style hat.
5
TD Bank and First Federal Bank are both “bank[s]” within the meaning of the statute
because they are federally insured. See 18 U.S.C. § 2113(f) (defining a “bank” as an institution
“the deposits of which are insured by the Federal Deposit Insurance Corporation”).
6
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The TD Bank teller identified Ellington at trial. The jury considered evidence that
a black Dodge Charger was parked across from the First Federal Bank on the
morning of the robbery, and that Ellington owned that same make and model car.6
The crime lab analyst also matched Ellington’s fingerprints to the fingerprints from
the book the robber used in the TD Bank robbery and to the garbage bag
containing the items the robber used in an attempt to disguise himself. 7 Finally,
the police recovered the beard, Bob Marley hat, and long-sleeved shirt that the
robber wore, all of which had Ellington’s DNA on them. 8
6
Ellington points to some alleged weaknesses and contradictions in the testimony about
the TD Bank demand note, the getaway car, and the robber’s height, but those “involve
credibility decisions that are matters for the jury,” and the “jury’s verdict indicates it found [the
government’s] witnesses credible.” United States v. Sanchez, 138 F.3d 1410, 1415 (11th Cir.
1998).
7
Ellington filed a motion in limine to exclude the garbage bag fingerprint evidence,
arguing that the government should have disclosed it sooner. (It was disclosed a week before
trial). “Late disclosure of evidence required to be turned over under [Federal Rule of Criminal
Procedure 16] or a standing discovery order necessitates reversal only if it violates a defendant’s
substantial rights.” United States v. Bueno-Sierra, 99 F.3d 375, 380 (11th Cir. 1996). The
district court did not err by denying that motion because the government turned over the
evidence, albeit belatedly, Ellington did not need a continuance, and there was significant
evidence against him. See id. (stating that “[s]ubstantial prejudice results if a defendant is
unduly surprised and lacks an adequate opportunity to prepare a defense,” and concluding that
“defendants suffered no such prejudice because there was significant other evidence” against
them); United States v. Kubiak, 704 F.2d 1545, 1552 (11th Cir. 1983) (concluding that the
government’s failure to comply with discovery rules was not reversible error where the
defendant did not move for a continuance).
8
Ellington argues that the DNA and fingerprint evidence is flawed because the crime lab
analysts matched the DNA and fingerprints collected from the robbery evidence to him even
before the police had arrested him and obtained his fingerprints and DNA. True, but they were
able to do that because his fingerprints and DNA were already in the fingerprint and DNA
databases. The jury heard that the fingerprints and DNA linked to the robbery matched Ellington
but not that the match was made by means of databases based on criminal arrests or convictions.
As a result, there is no merit to Ellington’s argument that he was prejudiced because of how the
7
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The evidence was sufficient for a reasonable juror to conclude that Ellington
robbed the TD and First Federal banks and that he committed the robberies by
intimidating the tellers. See Kelley, 412 F.3d at 1244–46. As a result, the district
court did not err in denying his motion for judgment of acquittal.9
B. Sentence Challenge
Ellington also challenges his 180-month sentence as substantively
unreasonable. His guidelines range was 63 to 78 months, but the district court
departed upward under United States Sentencing Guidelines § 4A1.3 based on
Ellington’s criminal history, raising the guidelines range to 92 to 115 months. See
U.S.S.G. § 4A1.3(a)(1) (Nov. 2015) (providing that district courts may depart
upward if “reliable information indicates that the defendant’s criminal history
category substantially underrepresents the seriousness of [his] criminal history”).
matches were made. And nothing in the record supports his argument that the DNA evidence
confused the jury.
9
A detective testified that at the end of his post-arrest interview with Ellington, he told
Ellington that he would take a statement any time Ellington wished. Ellington argues that
remark was a comment on his invocation of the right to remain silent. Even if it was, the
violation was harmless because it “had no substantial and injurious effect or influence in
determining the jury’s verdict.” United States v. Miller, 255 F.3d 1282, 1285 (11th Cir. 2001)
(quotation marks omitted). After Ellington objected, the court gave a curative instruction. Not
only that but the evidence against him was very strong. See id. at 1285–86 (“[W]e have
repeatedly held harmless a prosecutor’s single reference to the defendant’s post-Miranda silence
if it occurs during a trial at which the government’s evidence was otherwise overwhelming.”);
United States v. Gonzalez, 921 F.2d 1530, 1549–50 (11th Cir. 1991) (concluding that an
improper answer was harmless where defense counsel “quickly objected” and a “curative
instruction was promptly given to the jury”).
8
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Ellington does not challenge that upward departure. 10 The court then varied
upward to 180 months to account for Ellington’s significant criminal history, to
promote deterrence and public safety, and to reflect the seriousness of the offense.
Ellington does challenge that upward variance, contending that the court put too
much weight on his criminal history, resulting in the upward variance and an
unreasonable sentence.
We review the substantive reasonableness of Ellington’s sentence only for
abuse of discretion. United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir.
2010) (en banc). “A district court abuses its discretion when it (1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” Id. at 1189 (quotation marks
omitted). Even if the district court considers all the proper factors, it must still
weigh them reasonably. Id. We will vacate a sentence for unreasonable weighing
of factors “if, but only if, we are left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a) factors
10
Ellington uses the terms “departure” and “variance” interchangeably in his brief, but he
never challenges the upward departure itself. As a result, we address only the upward variance,
which he does challenge. See Sapuppo, 739 F.3d at 681 (stating that a party abandons a claim
where the party “does not plainly and prominently raise it, for instance by devoting a discrete
section of his argument to [the claim]”) (quotation marks omitted).
9
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by arriving at a sentence that lies outside the range of reasonable sentences dictated
by the facts of the case.” Id. at 1190 (quotation marks omitted).
The district court considered all of the proper factors and balanced them
reasonably. Its emphasis on Ellington’s extensive criminal history was
appropriate. See United States v. Rosales-Bruno, 789 F.3d 1249, 1263 (11th Cir.
2015) (“Placing substantial weight on a defendant’s criminal record is entirely
consistent with § 3553(a) because five of the factors it requires a court to consider
are related to criminal history.”). His criminal history dates back to 1986 when he
was 18 years old. It includes five robbery convictions (not counting these two) as
well as convictions for driving under the influence, unauthorized use of a motor
vehicle, possession of marijuana, criminal possession of stolen property, menacing
and harassment, absconding from temporary release, and reckless driving. He
received a 222-month sentence in 1996 after a jury found him guilty of two counts
of bank robbery, two counts of Hobbs Act robbery (involving two grocery stores),
and possessing a firearm during a crime of violence. He was released in July 2012,
but less than two years later he committed the robberies in this case even though he
was still serving a two-year term of supervised release for his 1996 convictions.11
As we said of another criminal some years back, his rap sheet “is long enough to
11
When he was arrested for these crimes, Ellington was on supervised release in the
Northern District of Florida. See United States v. Ellington, 681 F. App’x 868, 868–69 (11th
Cir. 2017) (unpublished) (noting that Ellington is a “recidivist bank robber and habitual violator
of conditions of supervised release”).
10
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require extra postage,” and “from [his] criminal record it seems as though he is
determined to serve a life sentence, albeit on the installment plan.” United States
v. Shaw, 560 F.3d 1230, 1231–32 (11th Cir. 2009). The district court added that
Ellington robbed the TD and First Federal banks despite having a “roof over his
head,” a “place to stay,” and “food on the table.”
In light of Ellington’s extensive criminal history, the court reasonably
determined that an above-guidelines sentence was necessary to serve the purposes
of the 18 U.S.C. § 3553(a) factors. See Rosales-Bruno, 789 F.3d at 1263 (“Under
substantive reasonableness review, we have repeatedly affirmed sentences that
included major upward variances from the guidelines for defendants with
significant criminal histories that the sentencing courts weighed heavily.”). As the
district court observed, by committing these robberies so soon after his release
from his 222-month sentence for robbery Ellington showed that he had “learned
very little from his prior incarceration” and that his earlier sentence did not succeed
in deterring him from robbing again. See 18 U.S.C. § 3553(a)(2)(B) (sentence
must deter criminal conduct). The court also pointed out that his overall criminal
history “reflect[ed] his intention to commit further crimes whenever he is not
incarcerated,” which threatens public safety. See id. § 3553(a)(2)(C) (sentence
must protect the public). And the court explained that a higher sentence would
reflect the seriousness of the offense, citing the tellers’ testimony about how
11
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frightened they were when Ellington robbed the banks. See id. § 3553(a)(2)(A).
After carefully considering all of those factors, the district court determined
that a 180-month sentence — well below the 240-month statutory maximum —
was necessary to accomplish the goals of § 3553(a). The district court’s upward
variance from 115 months, which was the top of the post-departure guidelines
range, is not unreasonable. See United States v. McKinley, 732 F.3d 1291, 1294–
95, 1298–99 (11th Cir. 2013) (affirming variance from 57–71 months up to 125
months where the defendant had “more than 25 years of criminal history
encompassing crimes from burglary and robbery to grand theft and reckless
driving” and the sentence was “well below the statutory maximum”); United States
v. Early, 686 F.3d 1219, 1221–23 (11th Cir. 2012) (affirming variance from 78–97
months up to 210 months based on the defendant’s extensive criminal history, as
well as the need to deter the defendant and protect the public). And we are not
“left with the definite and firm conviction” that the resulting 180-month sentence is
substantively unreasonable. Irey, 612 F.3d at 1190 (quotation marks omitted).12
12
Ellington has a few more contentions, which barely merit mention. One is that his
sentence is unconstitutional because any fact that increases a mandatory minimum must be
submitted to the jury. See Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 2155 (2013).
Fair enough, except that no mandatory minimum was involved in this case. Another contention
is that the government failed to produce documents complying with the Supreme Court’s
Shepard decision. See Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005). It was not
required to do so because this is not an Armed Career Criminal Act case. See id. at 15–16, 125
S. Ct. at 1257. He also asserts Fourth Amendment and harmless error arguments for the first
time in his reply brief, which is too late. See Sapuppo, 739 F.3d at 683 (“We decline to address
12
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AFFIRMED. 13
an argument advanced by an appellant for the first time in a reply brief.”) (quotation marks
omitted).
13
Although this case was originally on the oral argument calendar, it was removed under
11th Circuit Rule 34-3(f).
13