[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 3, 2008
No. 07-13738
THOMAS K. KAHN
_________________________
CLERK
D.C. Docket No. 06-00081-CR-01-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN L. PRICE,
DONALD M. REYNOLDS,
Defendants-Appellants.
_________________________
Appeals from the United States District Court for the
Southern District of Georgia
_________________________
(November 3, 2008)
Before DUBINA, HULL and FAY, Circuit Judges.
FAY, Circuit Judge:
Defendants Reynolds and Price appeal their convictions for armed bank
robbery in violation of 18 U.S.C. § 2113(a) and (d) and discharge of a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Reynolds
also appeals his conviction for possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). Reynolds argues that he should not have been
limited in his presentation of evidence at the suppression hearing and the district
court erred by finding the identification procedure admissible. Reynolds also
argues that the district court erred by allowing testimony at trial related to lost or
destroyed evidence, permitting testimony at trial from the Rule 11 hearing, and
imposing an upward departure at sentencing. Price contends that the
government’s use of testimony from the Rule 11 hearing creates a reversible error.
For the reasons set out below, we affirm Reynolds’ convictions and the district
court’s upward departure at sentencing and we vacate Price’s convictions on all
counts. Accordingly, we reverse the judgment entered against Price and remand
this matter to the district court for a new trial.
I. BACKGROUND
On April 21, 2006, the Queensboro National Bank and Trust in Hephazibah,
Georgia was robbed by a black male, carrying a shotgun and wearing a white jump
suit and a long, black wig. The robber fired the shotgun three times: into the
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ceiling as he entered the bank, demanding money from the teller; into the office of
a bank employee; and at a customer service representative. Fortunately, no one
was killed. However, a bank employee, shot at inside her cubicle, suffered a
wound to her left arm.
The robber left the bank with 6650 dollars in cash. He got in a “getaway”
car and drove away. Five to ten minutes later a 911 caller provided a possible
description of the “getaway” car. Deputy An, a Richmond County Sheriff’s
Deputy, saw a nearby car stopped at a stop light that fit the description. Deputy
An pulled into a “T-Bone” position with that car. The back seat passenger in the
car popped up and fired a shotgun at the Deputy. Deputy An, not hit by the shot,
returned fire. The driver then slowly drove the car into a nearby convenience store
parking lot at an almost idle speed. The shooter exited the vehicle and ran toward
a wooded area behind the convenience store. Price, the driver, was arrested at the
convenience store by Deputy Brian Richey. County agents found shotgun shells;
white coveralls, a long black wig, a knit cap, two black gloves, a wallet belonging
to a bank employee, the bank teller’s purse, and a black bag containing 6650
dollars in cash in the back seat of the car. After a ten to fifteen minute chase,
Deputy An and two other officers found Reynolds in a nearby neighborhood
hiding in a bushy area in front of a residence and placed him under arrest.
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Deputy An then brought Reynolds to the bank for a show-up identification.
The bank employees were informed by an officer that the man responsible for the
robbery had been apprehended and then watched as Deputy An removed a
handcuffed Reynolds from the backseat of a police vehicle. Reynolds was turned
to face the employees and told to show both sides of his face, open his mouth, and
hold up his head. The bank employees positively identified Reynolds as the
robber.
Defendants Reynolds and Price were indicted on one count each of armed
robbery in violation of 18 U.S.C. § 2113(a) and (d), and one count each of
discharge of a firearm during a crime of violence in violation of 18 U.S.C. §
924(c)(1)(A)(iii). Reynolds was also indicted on one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On March 6,
2007 Price and Reynolds were tried before a jury in the Southern District of
Georgia and convicted on all counts. On July 31, 2007 Price was sentenced to 155
months for armed robbery and 120 months for possession of a firearm by a
convicted felon, to run consecutively for a total sentence of 275 months in
confinement. Reynolds was sentenced to 300 months with respect to Count One,
120 months with respect to Count Three, to run concurrently with Count One, and
120 months with respect to Count Two, to be served consecutively.
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II. STANDARD OF REVIEW
There are four issues on appeal before us:
A. Whether the court erred by finding the identification procedure admissible
and whether the magistrate judge should have allowed Reynolds to call
witnesses at the suppression hearing.
B. Whether the court erred by admitting testimony about evidence that had not
been preserved or otherwise located for trial.
C. Whether the court erred by admitting testimony at trial from Price’s Rule 11
hearing.
D. Whether Reynolds’ sentence was reasonable.
A district court’s determination that an out of court identification procedure
was not impermissibly suggestive is subject to clear error review. United States v.
Diaz, 248 F.3d 1065, 1103 (11th Cir. 2001). If we find the district court
committed an error, we review that error to determine if it was harmless. Marsden
v. Moore, 847 F.2d 1536, 1546 (11th Cir. 1988) (“Unreliable identifications
resulting from unduly suggestive photographic displays are subject to harmless
error analysis.”).
We review evidentiary rulings of the district court for abuse of discretion.
United States v. Novaton, 271 F.3d 968, 1005 (11th Cir. 2001). Evidentiary errors
are only grounds for reversal if “there is a reasonable likelihood that they affected
the Defendant’s substantial rights; where an error had no substantial influence on
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the outcome, and sufficient evidence uninfected by error supports the verdict,
reversal is not warranted.” United States v. Drury, 396 F.3d 1303, 1315 (11th Cir.
2005) (quoting United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990));
see also Kotteakos. v. United States, 328 U.S. 750, 757 (1946) (quoting Berger v.
United States, 295 U.S. 78, 82 (1935) (“The true inquiry . . . is not whether there
has been a variance of proof, but whether there has been such a variance as to
affect the substantial rights of the accused.”).
We review sentences imposed by the district court for reasonableness.
United States v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006); see also
Kimbrough v. United States, 128 S.Ct. 558, 574 (2007).
III. ANALYSIS
A. Suppression Hearing
Reynolds appeals the magistrate judge’s decision to bar him from
introducing evidence at his suppression hearing and the district court’s subsequent
decision to allow pretrial and in-court identification testimony at trial. Before
trial, Reynolds challenged the circumstances surrounding his arrest and the
procedures used by the arresting officers during the show up. Specifically, he
moved to suppress all pretrial and in-court identification testimony due to its
suggestive nature. A hearing on Reynolds’ Motion to Suppress was held before
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U.S. Magistrate Judge Barfield on December 20, 2006. At the hearing, Judge
Barfield denied Reynolds’ request to call three bank employees to testify about the
suggestive nature of the identification procedure. Judge Barfield then
recommended that Reynolds’ Motion be denied and the district court subsequently
adopted Judge Barfield’s recommendation. Reynolds appeals the decision,
asserting that he was denied due process because he was not given an adequate
opportunity to prove the suggestive nature of the show up at the hearing and the
show up created a substantial risk of misidentification at trial.
Show ups “allow identification before the suspect has altered his appearance
and while the witness’ memory is fresh and permit the quick release of innocent
persons.” Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987). But, a show up
can be unduly suggestive if “the police aggravate the suggestiveness of the show
up.” Id. In “assessing the constitutionality of a trial court’s decision to admit an
out-of-court identification . . . [f]irst, we must determine whether the original
identification procedure was unduly suggestive. If we conclude that it was
suggestive, we then must consider whether, under the totality of the circumstances,
the identification was nonetheless reliable.” Diaz, 248 F.3d at 1102.
Identification procedures that are found to be unduly suggestive and unreliable are
then subject to harmless error review. Marsden, 847 F.2d at 1546 (“Unreliable
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identification resulting from unduly suggestive photographic displays are subject
to harmless error analysis.”).
To prove the identification procedure was unduly suggestive, Reynolds tried
to call three bank employees as witnesses. Reynolds’ counsel told the court the
bank employees would testify that (1) Reynolds was forced to hold his head up
and open his mouth to show his teeth to the bank employees; and (2) the police
told the bank employees they were bringing someone over who they wanted the
employees to look at and try to identify. The magistrate judge considered the facts
presented by counsel and concluded “even assuming that the bank employees had
testified to the information outlined by defense counsel at the hearing, this would
not change the conclusion that there was nothing unduly suggestive about the
manner in which the show-up was conducted.” (District Ct. Docket Entry # 98,
Rep. and Recommendation, at 14.) The magistrate judge announced he accepted
defense counsel’s proffer as given and consequently found it unnecessary to call
the bank employees to testify at the suppression hearing. The magistrate judge
explained that Reynolds was told to lift his head and open his mouth because the
employees had noticed “the distinctive nature” of the robber’s teeth. (Id. at 14.)
The magistrate judge also stated that the officer’s remark that the police were
bringing over someone to be identified was similarly not suggestive, it was just an
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explanation of what was about to occur. The magistrate judge subsequently found
the show up was not overly suggestive.
At a suppression hearing, the preferred course is to give great latitude to a
party presenting evidence in support of a Motion to Suppress. This is consistent
with United States v. Williams where we recognized that a defendant should be
given wide latitude to develop the factual circumstances about the suggestiveness
of an identification procedure. 592 F.2d 1277, 1281 (5th Cir. 1979).1 In this
abundance of caution, instead of considering the evidence that Reynolds proffered
these witnesses would testify to, Reynolds should have been able to enter these
witnesses’ testimony into the record.
Nevertheless, this error had no substantial influence on the outcome of the
trial. The danger of misidentification by eyewitnesses in pre-trial identification
procedures may be “substantially lessened by a course of cross-examination at trial
which exposes to the jury the method’s potential for error.” Simmons v. United
States, 390 U.S. 377, 384 (1968). Here, Deputy An and the bank employees were
cross examined by Reynolds about the show up and identification process.
Reynolds was able to expose any potential errors in the identification procedure to
1
Under Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
are bound by cases decided by the former Fifth Circuit before October 1, 1981.
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the jury. Reynolds further presented evidence that the robbery lasted only fifty-
five seconds (Tr. at 153); that Reynolds was the only person presented to the bank
employees for identification (id. at 154); that one of the witnesses could not
positively identify Reynolds as the robber, provide an accurate description of the
robber or recall what he was wearing an hour after the robbery (id. at 95 and 98);
and that the teller who identified Reynolds avoided looking at the robber during
the robbery and did not even recall seeing a gun (id. at 150-51). The jury heard
the testimony of all of the witnesses, the cross examination of those witnesses, and
the facts Reynolds placed into the record before finding Reynolds guilty. Thus,
we find the magistrate judge’s failure to allow the testimony of the bank
employees at the suppression hearing was harmless error.
Viewing this record in its entirety, there is simply no risk that Reynolds was
misidentified. This is so because there was an abundance of incriminating
evidence identifying Reynolds as the robber, independent of the show up. For
example, there was a video tape of the robbery and it was clear from the video that
Reynolds was wearing the same clothing as the robber. Thus, the bank employees
were not relied upon to remember those details about the robber. Second, the bank
employees informed the police about the distinctive nature of the robber’s teeth
before the show up identification and the robber’s teeth were caught on camera.
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Reynolds’ teeth matched the video and the employees’ description. Third,
Reynolds was identified by Price, the driver of the “getaway” car, as the passenger
in that “getaway” car. Fourth, Price testified that after hearing a loud noise he saw
Reynolds in the backseat of the “getaway” car holding a shotgun. Fifth, Reynolds
was identified by Deputy An as the person who shot at him. Sixth, the “getaway”
car contained the white overalls, long black wig, knit cap, and black gloves worn
by the robber. The car also contained a wallet and a purse belonging to bank
employees and a black bag filled with the same amount of money that was stolen
from the bank. Thus, no substantial risk of misidentification existed because there
was overwhelming evidence against Reynolds to support the jury’s guilty verdict.
Assuming the admission of the show up was error, which we do not hold, it was
harmless.
B. Disruption of Evidence
Reynolds appeals the district court’s decision to permit testimony related to
evidence unavailable at trial. The government introduced testimony about the
“getaway” car, which was destroyed prior to trial, after Defendants filed a Motion
to Preserve Evidence. Further, the government called two bank employees as
witnesses whose audiotape statements from the day of the robbery disappeared
prior to trial. Reynolds objected to the use of this testimony. The court heard
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counsels’ arguments, and then ruled the testimony admissible. Reynolds appeals
the decision, asserting he was denied his right to due process.
Lost evidence does not automatically deny a defendant his or her right to
due process. The lost evidence “must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably
available means.” United States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir.
2006) (quoting California v. Trombetta, 467 U.S. 479, 489 (1984)). Further, the
loss must be due to the government’s bad faith. Id.
Here, the district court held there was no denial of due process because the
evidence was not potentially exculpatory, it was brought before the jury by other
means, and there was no showing of bad faith by the government. We agree.
Before destroying the car, the officers seized what they believed to be all the
relevant evidence from the car: the stolen money, shotgun shells, the white
jumpsuit, the wig, the knit cap, and spent shell casings. Pictures were also taken
of the car which the district court observed “would seem to suffice” and Deputy
An testified that they fairly and accurately depicted the vehicle he attempted to
stop. The district court further permitted testimony and cross-examination of the
officers about the contents of the car, its subsequent destruction and any evidence
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of bad faith. Reynolds did file a Motion to Preserve Evidence (District Ct. Docket
Entry # 40) on May 24, 2006, before the car was destroyed, but the Motion was to
preserve all evidence, including “investigative reports, witness statements,
documents, . . . contraband, . . . and other physical evidence.” (Id. at 1.) The
“getaway” car was never specifically mentioned. Additionally, Reynolds did not
move to inspect the vehicle until January 31, 2007, after the car was already
destroyed and over eight months after the Motion to Preserve was filed. (District
Ct. Docket Entry # 105, Notice of Intent to Inspect Vehicle.)
Again, assuming arguendo that the court erred in permitting testimony about
the destroyed vehicle, it was harmless. As discussed above, the jury heard
testimony about how the vehicle was destroyed. The jury also saw photographs of
the car, and the contents of the car were available for Reynolds’ use at trial.
Further, the car was not integral to Reynolds’ defense. Reynolds did not
specifically name the car in his Motion to Preserve Evidence, nor did he move to
inspect the car for eight months after he filed the Motion. The trial court found
that “quite frankly, the automobile itself does not appear to me, from my limited
perspective, as an important feature of the evidence in this case. The pictures that
we have seen of this vehicle would seem to suffice. What is important is the
laundry list of items that were found in that vehicle . . . ” Tr. at 231. Finally, there
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was ample evidence that Reynolds was connected to the car and the car was
connected to the robbery. Price, the driver of the car, identified Reynolds as a
passenger in the car; Reynolds was chased down after jumping out of the car;
Reynolds was seen holding a shotgun in the backseat of the car by both Price and
Deputy An; items found in the car were linked to the robbery; and Reynolds was
identified by the bank employees as the robber who left the bank in the “getaway”
car. Although counsel engaged in some speculation, there was nothing to suggest
that examination of the car would have revealed any exculpatory evidence.
The court also correctly allowed the bank employees to testify, despite the
lost recordings of their previous statements. Reynolds had ample opportunity to
establish any inconsistencies in testimony that may have been demonstrated by the
lost tapes through other evidence. Reynolds cross examined the bank employees
and used investigative notes and officer testimony to bring the witnesses’ previous
statements before the jury. The jury also heard testimony from the officers about
the lost tapes and the jury was instructed about spoliation of evidence. Further,
there was no showing of bad faith. Finally, any error was harmless: the jury heard
testimony about the lost tapes, the cross examination of the bank employees, the
investigative notes, officer testimony, and the jury instruction of spoliation of
evidence before finding Reynolds guilty.
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C. Rule 11 Hearing Testimony
Defendants Reynolds and Price appeal the court’s decision to allow the
introduction of testimony from Price’s Rule 11 hearing. Initially, Price entered
into plea negotiations with the government; he would plead guilty to armed
robbery and in exchange the government would dismiss the charge of possession
of a firearm by a convicted felon. On February 2, 2007, the district court held a
Rule 11 hearing for Price. Judge Bowen, however, did not accept Price’s guilty
plea because Price refused to admit he knowingly participated in the bank robbery.
As a result, Price went to trial. At trial, over the objections of both Defendants,2
the government introduced testimony from the Rule 11 hearing.
In its cross-examination of Price, the government asked:
Q. Do you remember testifying before this court earlier?
A. Yes.
Q. And when you testified at that time you were sworn by this clerk and you
promised to tell the whole truth and you remember Judge Bowen was asking
you some questions?
MR. LEOPARD:3 I am going to object. I am not sure what direction [the
government] is going in, but we could get into a dangerous
situation.
2
Price’s objection is the only objection reflected on the transcript, but Reynolds asserts
that he also objected. For purposes of this appeal, we assume that Reynolds objected timely to
the use of the Rule 11 testimony and is not precluded from bringing this issue up on appeal.
3
Daniel G. Leopard, Esq. represents Alvin L. Price in this action.
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THE COURT: I am going to allow an inquiry into his prior testimony, but only
his testimony.4
Q. At that hearing this judge, Judge Bowen, asked you some questions and he
specifically asked you ‘I’m not so concern[ed] [sic] about what happened at
that point in time. I am concerned about what you knew or did not know at
the time when you went to the bank with Mr. Reynolds tell me about that?’
And your answer was: ‘at the time he was in the bank I was in the car and it
was facing toward the traffic?’
Tr. at 363-64. The government continued:
Q. Let me read something else to you. You said during that same hearing: Just
a few seconds before ‘when I was there at the bank I was facing the traffic.
He told me he was going to see someone. Okay. So, he got out and I was
just looking around, just sight seeing because this is my first time in
Georgia. He comes back in and he told me to go ahead and drive.’ Do you
remember saying that?
Id. at 365.
Federal Rule of Evidence 410 states that “any statement made in the course
of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure” is
inadmissable “against the defendant who made the plea or was a participant in the
plea discussions.” FED. R. EVID. 410(3). Although Rule 410 makes an exception
when the evidence is used for impeachment purposes, Rule 11(e)(6) of the Federal
Rules of Criminal Procedure, which supersedes Rule 410, only allows evidence of
4
It would have been extremely helpful if the lawyers had reminded the trial judge that
this testimony had come from a Rule 11 hearing. At the Rule 11 hearing, immediately after the
judge had refused to accept Price’s guilty plea, the judge advised the lawyers that none of this
would be admissible at trial.
16
a withdrawn guilty plea to be admitted in a criminal proceeding for perjury or if
there is a false statement. United States v. Martinez, 536 F.2d 1107, 1108 (5th Cir.
1976); FED. R. CRIM. P. 11(e)(6). A defendant may also agree to waive his Rule
410 protections. United States v. Mezzanatto, 513 U.S. 196, 209 (1995) (“We
hold that absent some affirmative indication that the agreement was entered into
unknowingly or involuntarily, an agreement to waive the exclusionary provisions
of the plea-statement Rules is valid and enforceable.”).
Price did not waive his Rule 410 protections and the Rule 11 testimony was
not admitted for perjury or because Price made a false statement. We find the
government’s use of Price’s Rule 11 testimony erroneous. However, if the
evidence against the Defendants, apart from the Rule 11 testimony, was sufficient
to support the jury’s guilty verdicts and was unaffected by the Rule 11 testimony,
then the misuse of the testimony is not reversible error. Drury, 396 F.3d at 1315
(“where an error had no substantial influence on the outcome, and sufficient
evidence uninfected by error supports the verdict, reversal is not warranted”);
Martinez, 536 F.2d at 1108 (“But we need not determine whether or not the error
was invited because we are convinced that in light of all the evidence presented at
trial the sworn statements had only a slight effect on the jury’s decision. Therefore
the government’s mistaken reliance on Rule 410 was harmless error.”).
17
With regard to Price, the Rule 11 testimony was not harmless and we
therefore find reversible error. As far fetched as it may seem, Price’s sole defense
was that he was so high on crack cocaine that he knew nothing about the facts
leading up to the bank robbery. At trial, Price testified at great length that he was
so intoxicated or high on crack cocaine before, during, and after the robbery that
he was unaware a robbery or any other crime had taken place. He therefore
claimed he did not have the requisite intent to commit the bank robbery or any
other offense. Price presented evidence that he smoked crack cocaine prior to and
during the stop at the bank (Tr. at 348); was unaware they had stopped at a bank,
that a robbery had occurred, or that a shotgun, a bag of money, a wig, and a white
jump suit were in the backseat of the car until Reynolds fired the shotgun at law
enforcement (id. at 353); would not have gotten in the car with Reynolds had he
known what was in the car or Reynolds’ intent (id. at 356); drove the “getaway”
car in a manner consistent with a person unaware that a crime had just taken place
- under the speed limit “like an old person was driving it” (id. at 111); did not run
from law enforcement, but slowly idled the car into the gas station (id. at 187); and
seemed unclear as to why a police officer was pulling him over when he was
apprehended (id. at 189).
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Price’s Rule 11 testimony directly contradicted this defense. The
government suggested on cross examination of Price that at the Rule 11 hearing
Price had stated something to the effect that “when I was there at the bank I was
facing the traffic” and “at the time [Reynolds] was in the bank I was in the car and
it was facing toward the traffic.” Id. at 363-65. Price instantly and vehemently
denied ever using the word “bank.” He maintained that Reynolds had told him he
was going to see someone in a store. This testimony could have influenced the
jury’s finding that Price was cognizant of his surroundings during the robbery and
was therefore culpable. The importance of the testimony is reinforced by the
jury’s request for the Rule 11 hearing transcript during deliberation. The jury’s
reasoning behind its guilty verdict is unknown. However, due to the nature of
Price’s defense and the contrary testimony from the Rule 11 hearing, we find that
the testimony must have had a substantial influence on the jury’s verdict and was
not harmless error.
With regards to Reynolds, the Rule 11 testimony was harmless and we
therefore find no reversible error. Reynolds argues that the Rule 11 testimony
insinuated the court believed Reynolds entered and exited the bank. That
insinuation, however, did not affect the outcome of the case. The record contains
too much inculpating evidence for the testimony to have affected the jury’s guilty
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verdict. First, Price testified that Reynolds was in the backseat of the “getaway”
car. Second, County agents found the white coveralls and the long, black wig
worn by the robber and identified at trial by the bank employees in the backseat of
that car. The car also contained shotgun shells, a knit cap, black gloves, the 6650
dollars stolen from the bank, and a wallet and a purse belonging to bank
employees. Third, Reynolds was identified as the robber by the bank employees
an hour after the robbery and he was identified again during the trial. Fourth,
Reynolds was wearing the same clothes as the robber and he had the same
distinctive teeth. Fifth, Officer An further identified Reynolds in live court as the
man who fired a shot in the direction of his vehicle and Price testified that after
hearing a loud noise he saw Reynolds holding a shotgun in the backseat of the car.
There was overwhelming evidence against Reynolds, unaffected by the Rule 11
testimony, to support the guilty verdict. Thus, we find the court’s ruling in this
regard was harmless error as to Reynolds.
D. Upward Departure at Sentencing
Reynolds appeals the district court’s upward departure from the advisory
guideline range and its imposition of the maximum sentence allowed. Reynolds’
Pre-sentence Investigation Report recommended an advisory guidelines
sentencing range of 135 to 168 months for armed bank robbery and possession of
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a firearm by a convicted felon and a mandatory minimum of 120 months to be
served consecutively for discharge of a firearm during a crime of violence. Sent.
Tr. at 62-63. The district court chose to depart from the advisory guideline range
for armed bank robbery and imposed the maximum sentence allowed by statute of
300 months.
When sentencing a defendant, a district court must first calculate the
guideline range and then consider the 18 U.S.C. § 3553(a) factors to arrive at a
reasonable sentence. United States v. Owens, 464 F.3d 1252, 1254 (11th Cir.
2006).
Due to the nature and circumstances of this offense, the district court’s
upward departure was reasonable. After calculating the guideline range, the court
considered the 3553(a) factors and found that an increased sentence would further
the goals of punishment and deterrence. Further, citing the blatant nature of the
bank robbery, the court sentenced Reynolds above the guideline range because of
the particularly egregious facts of the case. Reynolds fired on law enforcement
and bank employees and even wounded an employee. The court explained that
“Mr. Reynolds blasted his way into the bank shouting and shooting and creating as
much terror and intimidation as he possibly could.” Sent. Tr. at 61. In fact, the
court could not recall any bank robbery where “a weapon has been discharged as
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wantonly as this one.” Id. at 62. We find the increased sentence was justified and
reasonable.
IV. CONCLUSION
Based on the foregoing analysis we affirm Reynolds’ convictions and his
sentence. We further reverse the judgment entered against Price and remand this
matter to the district court for a new trial.
REYNOLDS’ CONVICTION AND SENTENCE AFFIRMED; PRICE’S
CONVICTION REVERSED AND REMANDED FOR A NEW TRIAL.
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