USCA11 Case: 21-11807 Date Filed: 08/16/2022 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11807
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EN CHIM,
a.k.a. Junior,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cr-00064-TFM-B-1
____________________
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2 Opinion of the Court 21-11807
Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
En Chim appeals his convictions for Hobbs Act robbery and
brandishing a firearm during a crime of violence, and the substan-
tive reasonableness of his sentence. He argues that a reasonable
jury would not have believed the testimonial evidence presented
at trial and that the district court abused its discretion by admitting
evidence of an uncharged staged robbery. He also argues that the
court abused its discretion at sentencing by declining to reduce his
283-month sentence to compensate for the severity of the manda-
tory consecutive sentences for brandishing a firearm. After careful
review, we affirm.
I. BACKGROUND
We presume familiarity with the factual and procedural his-
tory and describe it below only as needed to resolve the issues
raised in this appeal.
A federal grand jury indicted Chim for two robberies that
occurred nine days apart in Bayou La Batre, Alabama—the first at
a Value Express convenience store, and the second at a Subway
restaurant. The indictment charged two counts of Hobbs Act rob-
bery, in violation of
18 U.S.C. § 1951(a) (Counts One and Two);
two counts of brandishing a firearm during a crime of violence, in
violation of
18 U.S.C. § 924(c) (Counts Three and Four); and one
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21-11807 Opinion of the Court 3
count of possession of a firearm by a felon, in violation of
18 U.S.C.
§ 922(g)(1) (Count Five).
A. The Government’s Case at Trial
At trial, the government called Naif al Samet. Al Samet tes-
tified that he was working behind the counter at Value Express
when two robbers entered, pointed a gun at him, and stole around
$300 from the cash register. The first robber had his face partially
covered and the second wore a mask. A few days later, while al
Samet was working at the store, a man with the same eye features,
voice, pants, and mannerisms as the first robber visited the store.
Al Samet then called the police, pointed the man out on the store’s
surveillance video, and identified him as one of the men who had
robbed him days earlier. Police identified the man in the surveil-
lance video as Chim.
The government then called Chasity Silloway. Silloway tes-
tified that, nine days after the Value express robbery, she was work-
ing at Subway when a hooded man wearing a bandana over his face
entered and pulled out a gun. He made Silloway open the cash reg-
ister, remove the drawer, and take the drawer to the back door
where another robber was waiting to put the money in a bookbag.
The robbers then located and took the box where Subway kept its
petty cash, leaving with around $800. Silloway did not immediately
reveal to police that she knew one of the robbers because she was
“really shaken up.” But she later told police that she recognized one
of the robbers as Chim. She believed it was Chim because Chim
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was the fiancé of the night shift manager, Britney Owens, and often
came to the restaurant to see Owens. Silloway also testified that
five minutes before the robbery, Owens had called her. She added
that only employees who worked at the store knew where the
petty cash box was hidden. Finally, she identified Chim in the
courtroom.
The government then called Silloway’s coworker at the time
of the robbery, Chelsea Johnson. Johnson’s description of events
matched Silloway’s—including that she too had received a call
from Owens minutes before the robbery. She testified that the sec-
ond robber was wearing a distinctive mask from the “Scream”
movies, that the robbers wore matching gray shoes, and that the
first robber was wearing a bandana that left his eyes uncovered. A
few hours after the robbery, she sent police a picture of Chim and
identified him as one of the robbers. She also identified Chim in the
courtroom.
The government next called Kory McClantoc. McClantoc
testified that on the night of the Subway robbery he noticed a car
belonging to Chim’s “wife[] . . . or girlfriend[]”driving slowly in
front of him near Subway. McClantoc testified that he had not rec-
ognized the driver at the time. But after the government refreshed
McClantoc’s memory on the stand, McClantoc confirmed that he
had first told police that on the night of the robbery he had seen
Chim driving slowly down the road near Subway.
The government next called Jennifer Renee Lee, Subway’s
general manager. Lee was not at the store during the robbery. She
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testified that knowledge of the petty cash lockbox’s location was
“insider information,” that Owens knew its location, and that Ow-
ens and Chim were living together at the time of the robbery. She
also testified that she received a call from an unknown number on
the morning after the robbery, and that the caller told her “[y]ou
got what you deserve, bitch.” She recognized the caller’s voice as
Chim’s.
Along with evidence of the charged Value Express and Sub-
way robberies, the government offered extrinsic evidence of an un-
charged theft from a Chevron station that occurred just before the
second charged robbery in nearby Irvington, Alabama. The gov-
ernment argued that the evidence was probative because of the
Chevron theft’s similarity to the charged robberies. Just like those
robberies, the Chevron theft involved: two robbers wearing grey
shoes, blue gloves, and hooded sweatshirts; the first robber carry-
ing a silver pistol, wearing black pants, and covering his face up to
his eyes; and the second robber dressed in black, handling the
money, and wearing a Scream mask. Moreover, the first Chevron
robber appeared to be wearing the same hooded sweatshirt—a dis-
tinctive blue and white varsity-style jacket with light blue writing—
that he wore during the Value Express robbery.
At trial, the district court admitted the extrinsic offense evi-
dence over Chim’s objection. It concluded that the evidence was
relevant to Chim’s “modus operandi, identity, lack of mistake or
accident, part of [a] plan, scheme,” and that it was not unduly prej-
udicial. The court gave a limiting instruction, explaining that the
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jury could use evidence of the Chevron theft to help “decide
whether the similarity between those acts and the ones charged in
this case suggest that the same person committed all of them.” And
it clarified that Chim was “on trial only for the crimes charged in
the superseding indictment.”
The government’s extrinsic offense witness was Victoria
Lindsay. Lindsay testified that she worked at the Chevron station
around the time of the robberies and had previously bought nar-
cotics from Chim. She testified that she helped Chim rob the Chev-
ron station in exchange for money. She also testified that she spoke
with Chim on her cell phone right before the Chevron theft, com-
municating that the coast was clear. Video surveillance footage
showed Lindsay letting two men—one of whom she identified as
Chim—into the store. Chim was wearing a blue and white jacket.
The other man was wearing a Scream mask. The man in the
Scream mask emptied the cash register. Lindsay claimed to remem-
ber what Chim looked like, but when the government asked her to
identify him in court, she identified a juror rather than Chim. She
stated that she had not seen Chim in over two years.
The government also relied on testimony from Officer Mi-
chael Goodin, who investigated the Value Express and Subway
robberies. He testified that he recognized the man that al Samet
identified as one of the Value Express robbers as Chim. He also
stated that during his investigation, Chim’s brother contacted him
about a cell phone he had found in Chim’s old house. Officer
Goodin retrieved the phone and gave it to FBI Special Agent Paul
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21-11807 Opinion of the Court 7
Roche for examination. Special Agent Roche testified that the
phone had been used to call Lindsay on the morning of the Chev-
ron robbery and Lee on the morning after the Subway robbery.
After the government rested, Chim moved for a judgment
of acquittal, arguing that the government had failed to produce suf-
ficient evidence to sustain a conviction on any counts. The district
court denied Chim’s motion. Chim presented no evidence or wit-
nesses and chose not to testify. He then renewed his motion for a
judgment of acquittal, and the district court denied it for the same
reasons it earlier stated. The jury found Chim guilty on all counts.
B. Sentencing
A probation officer prepared a presentence investigation re-
port. The report calculated a total offense level of 23. It calculated
a criminal history score of 13, establishing a criminal history cate-
gory of VI. Based on a total offense level of 23 and a criminal history
category of VI, the report calculated a guideline imprisonment
range of 92 to 115 months for Counts One, Two, and Five. With
two consecutive seven-year (84-month) mandatory minimum sen-
tences for Counts Three and Four, the aggregate guidelines range
was 260 to 283 months. Neither party objected to the report, which
the district court adopted.
At his sentencing hearing, Chim argued that because his
convictions for Counts Three and Four required a “very signifi-
cant” sentence, that the court ought to impose a “minimal” sen-
tence below the guidelines range for his other offenses to track the
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8 Opinion of the Court 21-11807
purpose of
18 U.S.C. § 3553(a). The government requested a sen-
tence at the high end of the guidelines range: 283 months. The gov-
ernment argued that Chim was a “menace” who would not hesi-
tate to arm himself and confront members of his community. The
district court agreed, sentencing Chim to 283 months’ imprison-
ment followed by three years’ supervised release. Neither party ob-
jected.
II. STANDARD OF REVIEW
We review sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the jury’s verdict and draw-
ing all reasonable inferences and credibility choices in favor of the
verdict. United States v. Demarest,
570 F.3d 1232, 1239 (11th Cir.
2009).
We review evidentiary rulings for an abuse of discretion.
United States v. Henderson,
409 F.3d 1293, 1297 (11th Cir. 2005).
We also review the reasonableness of a sentence for abuse of dis-
cretion. Gall v. United States,
552 U.S. 38, 51 (2007).
III. DISCUSSION
Chim raises three issues on appeal. First, he argues that the
government’s evidence was insufficient to identify him as one of
the robbers, and thus cannot support his convictions on Counts
One through Four. Chim does not challenge his conviction on
Count Five. Second, he argues that the district court abused its dis-
cretion when it admitted evidence of the uncharged Chevron
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robbery under Federal Rule of Evidence 404(b). Third, he argues
that the district court abused its discretion by imposing an exces-
sive sentence that was substantively unreasonable. We address
each argument in turn.
A. Sufficient Evidence Supported the Jury’s Verdict
First, Chim argues that there was insufficient evidence for a
reasonable jury to convict him of the acts charged in Counts One
through Four because the government failed to prove that he was
one of the robbers. We disagree.
The relevant question in reviewing sufficiency of the evi-
dence is whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” De-
marest,
570 F.3d at 1239 (quotation marks omitted). In evaluating
evidence, jurors may “apply their common knowledge, observa-
tions and experiences in the affairs of life.” United States v. Cruz-
Valdez,
773 F.2d 1541, 1546 (11th Cir. 1985) (en banc). Credibility
determinations are for the jury, and we will not disturb them unless
the witness testimony is “incredible as a matter of law.” United
States v. Flores,
572 F.3d 1254, 1263 (11th Cir. 2009) (quoting
United States v. Calderon,
127 F.3d 1314, 1325 (11th Cir. 1997)).
Testimony is “incredible” as a matter of law if it “relates to ‘facts
the witness could not have possibly observed or events that could
not have occurred under the laws of nature.’”
Id.
Here, the government produced sufficient evidence to sus-
tain Chim’s convictions for Hobbs Act robbery and brandishing a
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10 Opinion of the Court 21-11807
firearm. First, the eyewitness to the Value Express robbery—al
Samet—later identified a man on the store’s surveillance footage as
one of the robbers, and Officer Goodin identified that man as
Chim. Al Samet testified that he was sure that one of the robbers
was Chim, as he could see Chim’s features “right above his nose,”
and recognized Chim’s eyes, voice, pants, and manners when he
returned to the store days later. Second, two eyewitnesses to the
Subway robbery—Silloway and Johnson—both identified Chim as
one of the robbers. Silloway identified Chim based on his eyes,
which were uncovered, and his voice. Johnson testified that she
identified Chim based on his eyes, body type, and sweatshirt.
Third, several witnesses who did not observe the robberies sup-
plied testimony that supported the jury’s verdict. McClantoc
placed Chim near Subway shortly before it was robbed. And Lee
testified that she recognized Chim’s voice when he called her the
morning after the Subway robbery and told her “[y]ou got what
you deserve, bitch.”
Because these witnesses’ testimonies related to their own ex-
perience and observations, they were not incredible as a matter of
law. See Flores,
572 F.3d at 1263. Furthermore, the eyewitnesses’
failure to identify Chim to police right after the robberies does not
preclude a reasonable juror from concluding that they accurately
identified him later. A reasonable juror could have found that any
delay in identifying Chim stemmed from shock or fright caused by
being robbed at gunpoint. In sum, the evidence presented at trial
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was sufficient for a rational trier of fact to conclude that Chim com-
mitted the charged offenses.
B. The District Court Did Not Abuse Its Discretion by Admit-
ting Evidence About the Staged Chevron Robbery
Chim argues that the district court abused its discretion by
admitting evidence of the uncharged Chevron robbery. He con-
tends that the Chevron robbery lacked probative value because it
was factually unlike the charged robberies. He also contends that
the government failed to link him to the Chevron robbery because
Lindsay, the extrinsic offense witness, misidentified Chim at trial
and because there was no evidence that the cell phone linked to the
Chevron theft was his. We disagree.
Federal Rule of Evidence 404(b)(1) bars the admission of ev-
idence of prior crimes to prove that a defendant has a criminal dis-
position to create the inference that he committed the charged
crimes. But such evidence “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed.
R. Evid. 404(b)(2). To be admissible, such evidence must satisfy
three criteria: (1) the evidence must be relevant to an issue other
than the defendant’s character; (2) the evidence must include suffi-
cient proof that a jury could find that the defendant committed the
extrinsic act; and (3) the probative value of the evidence must not
be substantially outweighed by the danger of undue prejudice and
should satisfy Federal Rule of Evidence 403. See United States v.
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12 Opinion of the Court 21-11807
Whatley,
719 F.3d 1206, 1217 (11th Cir. 2013). In this context, “suf-
ficient proof” requires merely a preponderance of the evidence. See
United States v. Edouard,
485 F.3d 1324, 1344 (11th Cir. 2007) (cit-
ing United States v. Chavez,
204 F.3d 1305, 1317 (11th Cir. 2000)).
Here, the district court ruled that the extrinsic offense evi-
dence was admissible to show “modus operandi, identity, lack of
mistake or accident, part of plan, [or] scheme.” Though any one of
the proposed grounds might justify admission, we focus on one:
identity. When extrinsic offense evidence is introduced to prove
identity, “the likeness of the offenses is the crucial consideration”
and “must be such that it marks the offenses as the handiwork of
the accused.”
Id. (quoting United States v. Phaknikone,
605 F.3d
1099, 1108 (11th Cir. 2010) (internal quotation marks omitted)).
“The extrinsic act must be a signature crime, and the defendant
must have used a modus operandi that is uniquely his.”
Id. (internal
quotation marks omitted). The two crimes must “bear such pecu-
liar, unique, or bizarre similarities as to mark them as the handi-
work of the same individual.” United States v. Myers,
550 F.2d
1036, 1045– 46 (5th Cir. 1977) (quoting United States v. Goodwin,
492 F.2d 1141, 1154 (5th Cir. 1974)).
Evidence of the Chevron robbery was relevant to prove
Chim’s identity because that theft was strikingly similar to the
charged robberies. See Whatley, 719 F.3d at 1217. First, all rob-
beries featured the presence of a money-handling accomplice wear-
ing a distinctive Scream mask. Second, Chim allegedly wore the
same gray shoes and black pants, and carried the same silver gun,
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in all three robberies. And he appears to have worn the same blue
and white varsity-style jacket during the Value Express robbery and
the Chevron robbery. Finally, the Chevron robbery was commit-
ted close in time and geographic proximity to the charged rob-
beries. These factual similarities overcome the differences between
the crimes—namely, that the Chevron robbery occurred several
miles from Bayou la Batre and was coordinated with a Chevron
employee.
The government also supplied sufficient proof for the jury
to find, by a preponderance of the evidence, that Chim committed
the Chevron robbery, even without an in-court identification by
Lindsay. Id. The jury heard Lindsay testify that she had purchased
narcotics from Chim, that Chim organized the Chevron robbery
and persuaded her to participate, and that Chim participated in the
robbery. And it heard Lindsay testify that she had not seen Chim in
over two years. The jury also heard evidence that a burner phone
found in Chim’s old house was used in relation to the Chevron and
Subway robberies.
Finally, given the similarity of the Chevron robbery to the
charged robberies, we cannot say the district court erred in con-
cluding that the probative value of the extrinsic offense evidence
outweighed the risk of undue prejudice, which the district court
mitigated with its limiting instruction. Id.
When, as here, we review for abuse of discretion, it “means
that the district court had a ‘range of choice’ and that we cannot
reverse just because we might have come to a different conclusion
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had it been our call to make.” United States v. Harris,
989 F.3d 908,
912 (11th Cir. 2021) (quoting Sloss Indus. Corp. v. Eurisol,
488 F.3d
922, 934 (11th Cir. 2007)) (quotation marks omitted). See also Ras-
bury v. I.R.S. (In re Rasbury),
24 F.3d 159, 168 (11th Cir. 1994) (“By
definition, however, under the abuse of discretion standard of re-
view there will be occasions in which we affirm the district court
even though we would have gone the other way had it been our
call.”). Though we might have come to a different conclusion had
we weighed the evidence ourselves, we cannot say that the district
court abused its discretion in admitting evidence of the Chevron
robbery. Henderson,
409 F.3d at 1297.
C. Chim’s Within-the-Guidelines Sentence Was Reasonable
Chim argues that the district court abused its discretion by
imposing an “excessive sentence” that was greater than necessary
to accomplish the sentencing objectives in
18 U.S.C. § 3553(a).
Again, we disagree.
A sentence is substantively unreasonable if the district court:
“(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 con-
sidering the proper factors.” United States v. Irey,
612 F.3d 1160,
1189 (11th Cir. 2010) (en banc). We will vacate a sentence as sub-
stantively unreasonable only if we are “left with the definite and
firm conviction that the district court committed a clear error of
judgment in weighing the [Section] 3553(a) factors by arriving at a
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sentence that lies outside the range of reasonable sentences dic-
tated by the facts of the case.”
Id. at 1190 (quotation marks omit-
ted). We ordinarily expect a sentence within the guideline range to
be reasonable. United States v. Gonzalez,
550 F.3d 1319, 1324 (11th
Cir. 2008).
We cannot say the district court erred in declining to reduce
Chim’s sentence for Counts One, Two, and Five to offset his two
mandatory consecutive sentences for brandishing a firearm. The
district court did not deny that it had the authority to reduce
Chim’s overall sentence to account for his mandatory minimums.
See Dean v. United States,
137 S. Ct. 1170 (2017). But it gave good
reasons for declining to do so—namely, the violent nature of
Chim’s robberies, which “thank God . . . didn’t result in anyone’s
death,” and which the district court initially thought justified an
above-guidelines sentence of 360 months. See
18 U.S.C. § 3553(a).
Ultimately, however, the district court imposed a sentence within
the guideline range, which we ordinarily expect to be reasonable.
See Gonzalez,
550 F.3d at 1324. And Chim gives no reason for us
to conclude with a “definite and firm conviction” that his sentence
is outside the range of reasonable sentences dictated by the facts of
the case. Irey,
612 F.3d at 1190. Accordingly, the district court did
not abuse its discretion in imposing Chim’s sentence.
IV. CONCLUSION
For the foregoing reasons, the district court is AFFIRMED.
