United States v. Frye , 325 F. App'x 267 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4690
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY DONNELL FRYE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00247-HEH-1)
Submitted: February 26, 2009 Decided: April 27, 2009
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher J. Collins, Richmond, Virginia, for Appellant. Dana
J. Boente, Acting United States Attorney, Elizabeth C. Wu,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Larry Donnell Frye of one count of
armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d)
(2006). The district court sentenced him to 250 months’
imprisonment, a seventy-five-month upward variance from the top
of the range suggested by the Sentencing Guidelines. Frye
appeals, challenging the sufficiency of the evidence and the
substantive reasonableness of his sentence. Finding no merit to
these challenges, we affirm.
We review the district court’s decision to deny a Fed.
R. Crim. P. 29 motion for judgment of acquittal de novo. United
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). Where,
as here, the motion was based on a claim of insufficient
evidence, “[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942). Substantial evidence is evidence which “a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). In evaluating the sufficiency of the
evidence, this court does not review the credibility of the
witnesses and assumes that the jury resolved all contradictions
in the testimony in favor of the Government. United States v.
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Sun, 278 F.3d 302, 313 (4th Cir. 2002). In addition, the court
considers circumstantial and direct evidence, and allows the
Government the benefit of all reasonable inferences from the
facts proven to those sought to be established. United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The testimony
of a single witness may be sufficient to support a conviction,
even if that witness is an accomplice, co-defendant, or an
informer. United States v. Wilson, 115 F.3d 1185, 1189-90 (4th
Cir. 1997).
On February 21, 2006, a masked man robbed a Wachovia
Bank branch on West Cary Street in Richmond, Virginia. The
robber jumped over the bank’s teller counter, demanded and
grabbed money from the teller drawers, and pointed a gun at and
threatened to kill bank employees. A witness walking that day
on a sidewalk near the bank heard a “pop” and observed a man
standing in a nearby parking lot enveloped in a cloud of red
smoke and throwing money from his shirt onto the ground. The
man then fled between two nearby apartment buildings. Law
enforcement officials investigating the robbery recovered from
the ground near the bank clothing as well as United States
currency, some of which stained with red dye. DNA analysis
revealed that Frye could not be eliminated as a contributor to
the DNA found on the recovered clothes.
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The Government also presented the testimony of Lamont
McCord, a convicted felon, who testified that Frye admitted to
robbing the Wachovia bank and described to McCord jumping over
the teller counter, grabbing money and placing it in his pants,
and that upon leaving the bank, a dye packet exploded and he
changed his clothes in a alleyway. McCord also testified that
Frye bragged that he would “beat” the charge against him because
the bank tellers could not identify him and because one of his
pieces of clothing contained more than one set of DNA. Frye
denied ever robbing the bank.
On appeal, Frye contends that the evidence is
insufficient to support his conviction because the Government
failed to introduce evidence of the Wachovia bank’s status as an
institution insured by the Federal Deposit Insurance Corporation
(“FDIC”). He also asserts that McCord’s testimony, the only
direct evidence linking him to the robbery, is incredible.
To sustain a conviction for armed bank robbery under
18 U.S.C. § 2113(a), (d), the Government was required to prove
that the institution from which the money was stolen was a
“bank” as that term is defined in 18 U.S.C. § 2113(f). * See
*
18 U.S.C. § 2113(f) provides:
As used in this section the term “bank” means any
member bank of the Federal Reserve System, and any
bank, banking association, trust company, savings
(Continued)
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United States v. Gallop, 838 F.2d 105, 111 (4th Cir. 1988);
United States v. Wingard, 522 F.2d 796, 797 (4th Cir. 1975). At
trial, the parties entered into the following stipulation, which
was signed by counsel for Frye and counsel for the Government,
read to the jury, and received into evidence without objection:
Comes now the United States of America by its counsel,
and [Frye] by his counsel, respectfully state and
hereby stipulate the following facts are true and
correct:
Stipulation Number 1. On or about February 21, 2006,
the Wachovia Bank at 3201 West Cary Street, Richmond,
Virginia, was a bank, as that term is defined in Title
18 of the United States Code, Section 2113(f), and
that the deposits therein were insured by the Federal
Deposit Insurance Corporation, or FDIC.
Parties further stipulate that at least $3,907.38 in
U.S. currency was taken from a person in the presence
of another, on this date, and at this location.
The express language of the stipulation shows Frye’s agreement
that the Wachovia bank was a “bank” as that term is defined in
18 U.S.C. § 2113(f). Frye makes no attempt to invalidate the
stipulation by showing, for instance, that he entered into it
inadvertently or that he was not competent to make it. See
bank, or other banking institution organized or
operating under the laws of the United States,
including a branch or agency of a foreign bank (as
such terms are defined in paragraphs (1) and (3) of
section 1(b) of the International Banking Act of
1978), and any institution the deposits of which are
insured by the Federal Deposit Insurance Corporation.
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United States v. Reedy, 990 F.2d 167, 169 (4th Cir. 1993). By
failing to dispute the stipulation’s validity, he has abandoned
any basis for challenging the stipulation’s evidentiary value as
to its stipulated elements. See id.Frye’s challenge to the sufficiency of the evidence
on the basis of the credibility of witness McCord also fails
because witness credibility is not subject to appellate review.
See Sun, 278 F.3d at 313. As evidenced by its finding of guilt,
the jury resolved any conflicts in testimony in favor of the
Government and determined the Government’s witnesses to be
sufficiently credible and otherwise found sufficient
circumstantial and direct evidence of guilt. Our review of the
record convinces us that the jury heard sufficient evidence to
find Frye guilty as charged.
Frye also challenges the substantive reasonableness of
his sentence. After United States v. Booker, 543 U.S. 220(2005), a sentence is reviewed for reasonableness, utilizing an
abuse of discretion standard of review. Gall v. United States,
128 S. Ct. 586, 597 (2007). The first step in this review
requires this court to ensure that the district court committed
no significant procedural error, such as improperly calculating
the Guidelines range. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Frye claims no procedural error.
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This court next considers the substantive
reasonableness of the sentence imposed, taking the totality of
the circumstances into account. Id. at 161-62. Although this
court may presume that a sentence within the Guidelines range is
reasonable, it may not presume a sentence outside of the
Guidelines range is unreasonable. Gall, 128 S. Ct. at 597. In
reviewing a sentence outside of the Guidelines range, we must
consider “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007) (citation omitted).
This court will find a sentence to be unreasonable if
the sentencing court “provides an inadequate statement of
reasons or relies on improper factors in imposing a sentence
outside a properly calculated sentencing range.” Id. The
court, however, must give due deference to the district court’s
decision that the 18 U.S.C. § 3553(a) (2006) factors justify the
sentence. See Gall, 128 S. Ct. at 597; Evans, 526 F.3d at 162.
Even if this court would have imposed a different sentence, this
fact alone will not justify vacatur of the district court’s
sentence. Evans, 526 F.3d at 162.
Our review of the record convinces us that the
district court’s 250-month variance sentence was substantively
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reasonable. The district court considered the parties’
arguments and engaged in a meaningful articulation of its
consideration of the 18 U.S.C. § 3553(a) factors supporting the
seventy-five-month upward variance. Notably, the court
thoroughly reviewed Frye’s extensive criminal history and
accurately highlighted Frye’s history of assaultive and
threatening behavior.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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