United States v. Davis

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 9, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 05-5013
CLARENCE LEE DAVIS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 04-CR-85-JHP)

Submitted on the briefs:

Art Fleak, Tulsa, Oklahoma, for defendant-appellant.

Kevin Danielson, Assistant United States Attorney (David E. O’Meilia, United
States Attorney, with him on the brief), Northern District of Oklahoma, Tulsa,
Oklahoma, for plaintiff-appellee.

Before BRISCOE, McKAY, and McCONNELL , Circuit Judges.

BRISCOE , Circuit Judge.
 Clarence Davis appeals his conviction for conspiracy to commit armed bank

robbery, in violation of 18 U.S.C. § 371; aiding and abetting an attempted armed

bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a) and (d); brandishing,

carrying, and possessing a firearm in furtherance of a crime of violence, in

violation of 18 U.S.C. §§ 2 and 924(c); and for being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He also appeals his

360 month sentence. *

Davis argues that there was insufficient evidence to support his armed

robbery convictions, and that the district court erred by admitting evidence

concerning a purported false alibi and by instructing the jury on false exculpatory

statements. He also challenges his sentence, arguing that his sentence was

unreasonable under United States v. Booker, 125 S.Ct. 738 (2005), and that his

classification as a career offender for sentencing purposes violated his Sixth

Amendment rights because he was neither charged with being a career offender,

nor was it proven to a jury beyond a reasonable doubt. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm both his convictions and his sentence.

I.

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.

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 On April 13, 2004, at approximately 9:45 a.m., Loyel Collier, a security

guard for Riverwest Credit Union in Tulsa, Oklahoma, was sitting close to the

union’s front doors when he noticed two men enter the union and immediately

step to the right. He thought this was unusual because most people upon entering

walk straight toward the tellers. One of the men walked within arm’s reach of

Collier, pulled a gun from his waistband, and said, “Don’t move.” Collier, who

had an extensive military background with training in the use of firearms and the

identification of individuals, pulled out his gun and fired twice. Collier’s first

shot hit the glass partition separating him from the two men, but the second shot

hit the man holding the gun. The two men then ran out of the door and up the

street. When Collier followed, he saw an unoccupied red car with its engine

running at the entrance of the union. At trial, Collier testified that he got a good

look at both men, who were not wearing masks, before they left the union. He

identified Shelby Robinson as the man holding the gun, and stated that Clarence

Davis “appeare[d] to be the one with him.” Vol. IV at 16. Collier estimated that

from the time the two men entered the building until they ran out, only four to

five seconds had elapsed.

That same morning, Melissa Sloan had driven to a park to meet Robinson,

who was her boyfriend. Robinson had asked her to meet him there so he could

give her money to pay an outstanding bill. Eventually, Sloan received a phone

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call from Robinson, who was crying. He asked her to come and get him at a

convenience store in the vicinity of the union. When Sloan arrived at the store,

Robinson was not there, so she called him on his cell phone. Robinson instructed

Sloan to pick him up near the expressway. Sloan testified that at the pick-up

location Robinson and another man jumped out of some bushes and got into her

vehicle. She stated that Robinson sat in the front passenger seat, bleeding badly,

while the other man sat in the back seat. Sloan drove the two men to her home

where they were picked up minutes later by someone else.

Sloan testified that she never got a good look at the person in the back

seat, 1 but she overheard Robinson refer to him as “Pip, or something like that.”

Id. at 52-53. Davis’s girlfriend, Jeana Kendricks, testified that Davis’s nickname

was “Peppy.” Consistent with that testimony, Robinson’s brother stated that

Davis was often known as “Pep” or “Big Daddy.”

According to Sloan, during the trip to her house, the man in the back seat

grabbed her cell phone and used it. Phone records admitted at trial indicate that

several phone calls were placed from Sloan’s cell phone to Kendricks’s cell phone

between 9:51 a.m. and 10:09 a.m, right after the time of the robbery. Sloan

1
Law enforcement officers showed Sloan a photograph of Davis and she
identified him as the individual in the back seat of her car. At trial, she retracted
this statement and insisted that she was not comfortable identifying Davis as the
man in the backseat of her car.

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testified that she did not make any phone calls to Kendricks on April 13, or for

that matter, she stated that she did not even know Kendricks. Likewise,

Kendricks testified that she did not know Sloan. Other phone records admitted at

trial established: (1) a call from Robinson’s cell phone to Kendricks’s cell phone

at 7:35 a.m.; (2) four calls from Sloan’s cell phone to Robinson’s cell phone

between 8:50 and 9:00 a.m.; (3) six calls from Robinson’s cell phone to Sloan’s

cell phone between 9:17 a.m. and 9:50 a.m., (4) one call from Kendricks’s cell

phone to Sloan’s cell phone at 10:29 a.m.; (5) one call from Kendricks’s cell

phone to Robinson’s cell phone at 11:41 a.m; (6) one call from Kendricks’s cell

phone to Sloan’s cell phone at 11:42 a.m.; and (7) one call from Robinson’s cell

phone to Kendricks’s cell phone at 12:25 p.m.

In the days following the attempted robbery, law enforcement officers

recovered a gun and a black coat hidden in a residential neighborhood close to the

union, and found a long-sleeved t-shirt, a pair of gloves, a “do-rag,” and a piece

of a flannel shirt along the fence line of the expressway. A DNA analyst

compared a buccal swab from Davis to a sample taken from the “do-rag” and

found a match. Davis was approximately one in 31,000 African Americans with

DNA matching the “do-rag” sample. This was a fairly low figure due, in part, to

the fact that only a partial profile was obtained from the “do-rag.”

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 Eight days after the robbery, an FBI agent interviewed Davis. Davis

explained that for the past two weeks he had been working at a company named

TCIM from eight in the morning until four in the afternoon. Later on in the

interview, Davis changed his story and informed the FBI agent that he was at his

girlfriend’s house on the day of the robbery. A TCIM representative testified that

Davis had neither worked at TCIM, nor interviewed for a position there.

II.

A. Sufficiency of Evidence

Davis contends that the evidence was insufficient to convict him of

conspiracy to commit armed bank robbery and aiding and abetting an attempted

bank robbery.

“We review sufficiency of the evidence claims de novo, asking only

whether, taking the evidence–both direct and circumstantial, together with

reasonable inferences to be drawn therefrom–in the light most favorable to the

government, a reasonable jury could find [Davis] guilty beyond a reasonable

doubt.” United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000) (internal

quotations omitted). “We do not question the jury’s credibility determinations or

its conclusions about the weight of the evidence.” Id. “‘The evidence necessary

to support a verdict need not conclusively exclude every other reasonable

hypothesis and need not negate all possibilities except guilt. Instead, the

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evidence only has to reasonably support the jury’s finding of guilt beyond a

reasonable doubt.’” United States v. Pulido-Jacobo, 377 F.3d 1124, 1129 (10th

Cir. 2004) (citation omitted).

To convict a defendant of armed bank robbery, the government has the

burden to prove that (1) the defendant took, or attempted to take, money

belonging to a bank, credit union, or any savings and loan association; (2) by

using force and violence, or intimidation; (3) the deposits of the institution were

federally insured; and (4) in committing or attempting to commit the offense, the

defendant assaulted any person, or put in jeopardy the life of any person by the

use of a dangerous weapon or device. 18 U.S.C. § 2113(a), (d); United States v.

Wright, 215 F.3d 1020, 1028 (9th Cir. 2000).

Here, the government charged Davis with conspiring to commit armed

robbery and aiding and abetting an attempted armed robbery. “With respect to the

charge of conspiracy, the government was required to prove (1) an agreement

between two or more persons to break the law, (2) an overt act in furtherance of

the conspiracy’s objects, and (3) that . . . [Davis] willfully joined in the

conspiracy.” United States v. Summers, 414 F.3d 1287, 1295 (10th Cir. 2005)

(citing United States v. Shepard, 396 F.3d 1116, 1123 (10th Cir. 2005)). Under

the aiding and abetting theory, “the government was required to demonstrate

beyond a reasonable doubt that . . . [Davis] (1) willfully associated with the

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charged criminal venture and (2) aided the venture through affirmative action.”

Id. (citing United States v. Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir. 2004)).

Davis cites this court’s recent decision in United States v. Summers to

argue that the evidence presented at his trial was insufficient to support his

convictions. In Summers, we held that the evidence presented at trial was

insufficient to support the defendant’s convictions for aiding and abetting a bank

robbery and conspiracy to commit bank robbery. 414 F.3d at 1291-92.

Specifically, we held that the government’s theory that Summers was the getaway

driver at the bank and was a member of a conspiracy could be supported only by

“piling inference upon inference.” Id. at 1295. As to the aiding and abetting

charge, we noted that no witnesses could positively identify Summers either

before or after the robbery. Id. at 1296. As to the conspiracy charge, we

concluded that there was insufficient evidence to adduce that Summers “willfully

joined or participated in the conspiracy.” Id. In particular, we observed that the

government failed to produce evidence linking Summers to any post-robbery

activities or establishing communication between Summers and his co-defendants

prior to the bank robbery. Id. Additionally, we emphasized that the arresting

officers failed to discover any evidence linked to the bank robbery on Summers’

person. Id. In sum, we determined that Summers’ mere presence with the other

co-defendants in the getaway car was insufficient to support his convictions. Id.

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 Davis’s challenge to his conspiracy conviction closely follows our

reasoning in Summers. He argues that the evidence was insufficient to show that

he willfully joined or participated in the conspiracy. Davis acknowledges that the

jury may have inferred his presence in the area of the robbery, but he maintains

that this alone was insufficient because “there was simply no evidence to link . . .

[him] to the robbery itself.” Aplt. Br. at 34. He characterizes the DNA evidence

linking him to the “do-rag” as weak, and contends that no witness clearly

identified him. Davis again relies on Summers to contend that the government

failed to produce evidence establishing communication between him and

Robinson prior to the attempted robbery, and he believes it to be significant that

“officers failed to discover any evidence linked to the bank robbery on . . . [his]

person.” Id. 2

For Davis to argue that the evidence in this case was insufficient to convict

borders on being frivolous. Unlike Summers, there is strong evidence

establishing that Davis was Robinson’s accomplice. Collier positively identified

Davis at trial. Sloan did as well, even though she attempted to retract her earlier

identification to police. Sloan also testified that Robinson referred to the man in

2
Apparently, Davis relies on these same arguments to challenge the
government’s aiding and abetting theory because he fails to assert any separate
arguments for that conviction.

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the back seat of her car as “Pip,” and the evidence at trial demonstrated that Davis

used the nicknames “Pep” and “Peppy.” Arguably, the strongest identification

evidence comes from phone records. Sloan testified that the man in the back seat

used her phone while she was driving both men to her home. Sloan’s phone

records reflect that shortly after the attempted robbery, several phone calls were

made from her cell phone to Davis’s girlfriend, Kendricks. The evidence also

established that Kendricks and Sloan did not know each other. The remainder of

the phone records show numerous phone calls made between the cell phones of

Sloan, Robinson, and Kendricks on the morning of the robbery. While this

evidence alone is sufficient, DNA evidence also tied Davis to the “do-rag” found

in the vicinity of the credit union. This is not a case of piling inference upon

inference. There is more than ample direct and circumstantial evidence to support

Davis’s convictions for conspiracy to commit an armed bank robbery and aiding

and abetting an attempted armed bank robbery.

B. False Alibi and Jury Instruction Regarding False Exculpatory Statements

Davis argues that the district court erred by admitting an FBI agent’s

testimony concerning Davis’s statements to the agent and instructing the jury

regarding false exculpatory statements.

We review a district court’s ruling on the admissibility of evidence for an

abuse of discretion. United States v. Serrata, 425 F.3d 886, 901 (10th Cir. 2005).

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Under this standard, we will not reverse a trial court’s evidentiary rulings unless

we are convinced the district court “‘made a clear error of judgment or exceeded

the bounds of permissible choice in the circumstances.’” Id. (citation omitted).

We also review de novo whether, as a whole, the district court’s

instructions correctly stated the governing law and provided the jury with an

ample understanding of the issues and applicable standards. United States v.

Cerrato-Reyes, 176 F.3d 1253, 1262 (10th Cir. 1999) (citation omitted). “An

instructional error is harmless unless the error had a substantial influence on the

outcome of the trial or if the court is left in grave doubt as to its influence.”

United States v. Cota-Meza, 367 F.3d 1218, 1221 (10th Cir. 2004) (citation

omitted).

At trial, FBI agent Matt Lotspeich testified, over objection, about an

interview he conducted with Davis eight days after the robbery. Vol. V at 205,

212. According to Agent Lotspeich, Davis informed him that he was employed at

a company called TCIM, and that he had been working there for the previous two

weeks between 8 o’clock and 4 o’clock. Id. at 228. Agent Lotspeich testified

that during the interview Davis changed his story, and explained that he was not

at work at the time of the robbery, but was at his girlfriend’s house. Id. at 229.

The government argued before the district court that Davis’s evolving

statement to Agent Lotspeich–that he was at work at the time of the robbery and

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then that he was actually at his girlfriend’s house–constituted a voluntary, false

exculpatory statement. The government maintained that it was entitled to exploit

the false statement, call a witness from TCIM to prove that it was false, and to

obtain an instruction about consciousness of guilt. Id. at 213. The district court

allowed Agent Lotspeich’s testimony, as well as a TCIM representative’s

testimony that Davis had neither worked at TCIM, nor interviewed for a position

there. Over objection, the district court also gave the following jury instruction

on false exculpatory statements:

When a defendant voluntarily and intentionally offers an explanation,
or makes some statement before trial tending to show his innocence,
and this explanation or statement is later shown to be false, you may
consider whether this evidence points to consciousness of guilt. The
significance to be attached to any such evidence is a matter for you
to determine.

Vol. I, Doc. 96.

On appeal, Davis again maintains that the government improperly asked

Agent Lotspeich about an alibi statement that he never raised as a defense.

Specifically, Davis challenges the government’s use of Agent Lotspeich’s

testimony to make it appear that Davis relied on a false alibi, and then to call

another witness to demonstrate that Davis was not at work that day. Davis

asserts that his statement that he was at work was an example of thinking out

loud and that he merely had trouble remembering where he was on the day of the

robbery. He argues that his statement did not rise to the level of a false alibi.

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Davis contends that the district court’s error in admitting the testimony was

compounded by the jury instruction given on false exculpatory statements.

We conclude that the district court did not abuse its discretion in admitting

the challenged testimony to prove consciousness of guilt. Although false

exculpatory statements “cannot be considered by the jury as direct evidence of

guilt,” such statements “are admissible to prove circumstantially consciousness

of guilt or unlawful intent.” United States v. Zang, 703 F.2d 1186, 1191 (10th

Cir. 1982) (citations omitted). The jury was entitled to weigh the evidence and

decide whether Davis fabricated a story as to his whereabouts on the date of the

robbery, or just momentarily could not remember. See United States v. Ingram,

600 F.2d 260, 262 (10th Cir. 1979) (concluding that it was proper to give an

instruction regarding false exculpatory statements when the defendant informed

FBI agents that “though he wasn’t sure, he believed that he was at Fort Carson,

Colorado on the day of the robbery” and the government established at trial that

the statement was incorrect). We conclude that the district court’s instruction to

the jury about false exculpatory statements was supported by the evidence and is

an accurate statement of the law. The instruction “leaves exclusively to the jury

the question as to whether false exculpatory statements, if made, indicate

consciousness of guilt, or nothing at all.” Id.

C. Reasonableness of Sentence

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 Davis argues that his 360 month sentence was unreasonable in light of the

Supreme Court’s decision in Booker. First, Davis emphasizes the disparity

between his sentence and that of his co-defendant, Robinson. Davis paints

himself as the less culpable of the two, stressing that Robinson possessed the

firearm during the robbery and was a fugitive in another state for a period

following the robbery. Davis asserts that the district court’s sentencing

discretion, as well as common sense, dictates that his sentence should be similar

to Robinson’s 155 month sentence. Second, Davis contends that the district

court treated the guidelines as de facto mandatory. Lastly, Davis maintains that

he could not reasonably be designated as a career offender after Booker.

“We now review sentences imposed after Booker for reasonableness.”

United States v. Morales-Chaires, 430 F.3d 1124, 1128 (10th Cir. 2005) (citing

Booker, 125 S.Ct. at 766). Based on a total offense level of 37 and a criminal

history category of VI, the presentence report calculated Davis’s guideline range

to be 360 months to life imprisonment. Here, the district court carefully

explained its reasons for imposing a 360-month sentence:

In determining an appropriate sentence in this case, the Court
has reviewed and considered the nature and circumstances of the
offense as well as the characteristics and criminal history of the
defendant. Further, the Court has taken into consideration the
sentencing guideline calculations contained within the Presentence
Report, the objections to the presentence report, your arguments for a
sentence below the applicable guideline range, some revisions made
to the report, and the Court’s findings announced in open court

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 today. Consistent with the Supreme Court decision in United States
v. Booker, the Court recognizes it is not bound by the sentencing
guideline range calculations contained within the pre-sentence report,
but have considered them and find them to be advisory in nature.
Pursuant to 18 U.S.C. § 3553(a), there are several factors that
warrant the specific sentence imposed in this case. That is, the
defendant’s extensive criminal history, the violent nature of the
offense, and the applicable advisory guidelines that classify
defendant as a career offender. The sentence prescribed by this
Court reflects the seriousness of the offense, promotes respect for the
law and provides just punishment for the offense. This sentence
affords adequate deterrence to criminal conduct, protects the public
from further crimes of this defendant and provides correctional
treatment for the defendant in the most effective manner.

Vol. II.

Davis’s sentence disparity argument lacks merit. “While similar offenders

engaged in similar conduct should be sentenced equivalently, disparate sentences

are allowed where the disparity is explicable by the facts on the record.” United

States v. Goddard, 929 F.2d 546, 550 (10th Cir. 1990) (internal citation and

citation omitted); see also 18 U.S.C. § 3553(a)(6) (providing that a district court

must consider “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct”);

United States v. Gallegos, 129 F.3d 1140, 1143 (10th Cir. 1997) (stating that “the

purpose of the guidelines is to eliminate unwarranted disparities in sentencing

nationwide, not to eliminate disparity between co-defendants”) (citations,

quotations, and brackets omitted). Put another way, a criminal defendant alleging

a disparity between his sentence and that of a co-defendant is not entitled to relief

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from a sentence that is properly within the sentencing guidelines and statutory

requirements. United States v. Blackwell, 127 F.3d 947, 951-52 (10th Cir. 1997).

As the government points out, the reason for Davis’s lengthy sentence was his

career offender status. Without this classification, Davis’s total offense level

would have been 26, with a criminal history category of VI, resulting in a

guideline range of 100-125 months. This guideline range would be quite

comparable to Robinson’s ultimate 155 month sentence.

Davis’s belief that the district court treated the guidelines as de facto

mandatory simply because it did not impose a sentence below the guideline range

is not persuasive. The district court’s statements reflect that it thoroughly

considered both the applicable sentencing guidelines and the sentencing factors

enumerated in § 3553(a) before imposing a sentence at the bottom of the advisory

guideline range.

We further conclude that the district court properly designated Davis as a

career offender. “Whether a defendant was erroneously classified as a career

offender is a question of law subject to de novo review,” United States v.

Mitchell, 113 F.3d 1528, 1532 (10th Cir. 1997), but we review the district court’s

factual findings supporting a sentence enhancement for clear error, United States

v. Farrow, 277 F.3d 1260, 1262 (10th Cir. 2002). Under U.S.S.G. § 4B1.1, a

defendant is a career offender if:

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 (1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction, (2) the instant
offense of conviction is a felony that is either a crime of violence or
a controlled substance offense, and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled
substance offense.

U.S.S.G. § 4B1.1. First, the government submitted certified documentation to the

district court establishing that Davis was over eighteen years old at the time of the

armed robbery. Vol. VII at 7. Second, there can be no dispute that attempted

armed robbery is a “crime of violence” under U.S.S.G. § 4B1.2(1)(a). As to the

final element, the presentence report, pursuant to § 4B1.1(b)(B), raised Davis’s

offense level from 26 to 37 based on his prior convictions of possession of

cocaine with intent to distribute, unlawful possession of marijuana with intent to

distribute, and assault and battery on a peace officer. The government listed these

same convictions in count five of the second superceding indictment (felon in

possession of a firearm) as prior convictions “punishable by imprisonment for a

term exceeding one year.” Vol I, Doc. 69, at 6. 3 It is apparent that these felony

convictions under Oklahoma law constitute “crimes of violence” or “controlled

substance offense[s]” under U.S.S.G. § 4B1.2(1)(a) and (b). Davis’s criminal

history qualified him for career offender status, and thus, we reject any notion

3
At trial, Davis stipulated that he had been previously convicted of felony
crimes punishable for a term exceeding one year for the limited purpose of
establishing an essential element to his felon in possession of a firearm charge.
Vol. V. at 131.

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that the district court unreasonably applied the applicable guidelines. We

conclude that there is nothing in the record to suggest that Davis’s 360 month

sentence was unreasonable.

D. Sixth Amendment

Finally, Davis contends that the district court violated the Sixth

Amendment when it enhanced his sentence based on his career offender status,

i.e., his three prior felony convictions, which were not charged in the indictment,

nor proven to a jury beyond a reasonable doubt. Davis acknowledges that this

issue is foreclosed by current Supreme Court and Tenth Circuit precedent. He

raises the issue only to preserve it for possible Supreme Court review.

This court has held post-Booker that the existence and classification of

prior convictions used to enhance a defendant’s sentence need not be charged in

the indictment and submitted to a jury. See United States v. Moore, 401 F.3d

1220, 1224 (10th Cir. 2005) (“[W]e are bound by existing precedent to hold that

the Almendarez-Torres 4 exception to the rule announced in Apprendi 5 and

extended to the Guidelines in Booker remains good law . . . . We therefore

conclude that the government need not charge the ‘fact’ of a prior conviction in

an indictment and submit it to a jury.”); United States v. Small, 423 F.3d 1164,

4
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
5
Apprendi v. New Jersey, 530 U.S. 466 (2000).

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1188 (10th Cir. 2005) (holding that the district court’s career offender findings

under § 4B1.1 did not implicate the Sixth Amendment, and that “whether the

present offense and prior offense constitute felonies that are crimes of violence or

controlled substance offenses are questions of law unaffected by the Supreme

Court’s holding in Booker”). Accordingly, we reject Davis’s Sixth Amendment

argument. 6

Davis’s convictions and sentence are affirmed.

6
We note that Davis never stipulated that he achieved the age of majority
before committing the offense of conviction–a fact necessary to qualify for career
offender status. At sentencing, the government submitted evidence to the district
court to establish that Davis was eighteen years old at the time of the armed
robbery. Vol. VII at 7. Davis argued to the district court, Vol. I, Doc. 104, at 4-
5, and to some extent on appeal, Aplt. Br. at 29, that post-Booker his age must be
charged in the indictment and submitted to the jury. While Booker is implicated
because the district court, not the jury, found that Davis was eighteen when he
committed the armed robbery, United States v. Small, 423 F.3d at 1188, we agree
with the Seventh Circuit that a defendant who fails to assert that he was under
eighteen years old at the time of offense will not prevail on this claim under
either plain or harmless error review, United States v. Pittman, 418 F.3d 704, 710
(7th Cir. 2005). Similar to the defendant in Pittman, Davis does not contend that
he was less than eighteen at the time of the armed robbery, i.e., that the result
would have been different if the jury, not the judge, determined his age.

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