United States v. May , 43 F. App'x 681 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4821
GARLAND RUFUS MAY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4824
JENNIFER LOWE MAY,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-00-71)
Submitted: June 6, 2002
Decided: August 23, 2002
Before WILKINS, MOTZ, and GREGORY, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
2 UNITED STATES v. MAY
COUNSEL
Sean P. Devereux, SEAN P. DEVEREUX, P.A., Asheville, North
Carolina; Scott H. Gsell, Charlotte, North Carolina, for Appellants.
Robert J. Conrad, Jr., United States Attorney, Richard L. Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Garland May and Jennifer May appeal their convictions and sen-
tences for crimes arising from the robbery of three different federally-
insured banks. Jennifer May was convicted of one count each of bank
robbery, in violation of 18 U.S.C.A. § 2113(a) (West 2000); armed
bank robbery, in violation of 18 U.S.C.A. § 2113(d) (West 2000); and
using, carrying, and brandishing a handgun during a crime of vio-
lence, in violation of 18 U.S.C.A. § 924(c) (West 2000). Jennifer’s
convictions were related to the robbery of the First National Bank in
Shelby, North Carolina on June 12, 2000. Garland May was convicted
of two counts of bank robbery, in violation of 18 U.S.C.A. § 2113(a)
(West 2000); one count of bank larceny, in violation of 18 U.S.C.A.
§ 2113(b) (West 2000); one count of armed bank robbery, in violation
of 18 U.S.C.A. § 2113(d) (West 2000); and one count of using, carry-
ing, and brandishing a handgun during a crime of violence, in viola-
tion of 18 U.S.C.A. § 924(c) (West 2000). Garland’s convictions
resulted from the robberies of the Bank of America in Gastonia, North
Carolina, and the BB&T bank in Cherryville, North Carolina, both on
August 9, 2000.
Jennifer May first contends that the evidence was insufficient to
establish her guilt. A jury’s verdict must be upheld on appeal if there
UNITED STATES v. MAY 3
is substantial evidence in the record to support it. See Glasser v.
United States, 315 U.S. 60, 80 (1942). We view the evidence in the
light most favorable to the government, inquiring whether there is
evidence that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a rea-
sonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). In evaluating the sufficiency of the evidence, we do
not review the credibility of the witnesses and assume that the jury
resolved all contradictions in the testimony in favor of the govern-
ment. See United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
Jennifer May does not contest the fact that the robbery in question
occurred, or the particulars of the crime. Her defense at trial and argu-
ment on appeal are essentially that this was a case of mistaken iden-
tity and she was not the robber. We have reviewed the record, which
includes eyewitness testimony and bank surveillance videotape and
photographs, and conclude that the evidence supported the jury’s ver-
dict that Jennifer committed the robbery and brandished a handgun
during the robbery.
Jennifer May also contends that the district court erred in sentenc-
ing her to concurrent sentences for both bank robbery and armed bank
robbery. She argues that because there was only one underlying bank
robbery, her concurrent sentences under these counts are duplicitous.
The Government agrees, stating that Jennifer’s conviction under
§ 2113(a) is a lesser included offense of her conviction under
§ 2113(d). Jennifer May did not raise this argument before the district
court. Therefore, our review of the district court’s action is for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993); United
States v. Walker, 112 F.3d 163, 166 (4th Cir. 1997). We have long
recognized that § 2113 defines a primary offense of bank robbery in
§ 2113(a), and both mitigated and aggravated forms of that crime in
subsections (b) and (d). See United States v. Shelton, 465 F.2d 361,
363 (4th Cir. 1972); see also United States v. Gaddis, 424 U.S. 544,
547 (1976) (recognizing "merger" of convictions under § 2113(a) and
§ 2113(d) for same robbery). We therefore conclude that Jennifer’s
convictions under both § 2113(a) and (d) are duplicitous and her con-
viction and sentence for bank robbery under § 2113(a) must be
vacated.
4 UNITED STATES v. MAY
In his sole argument on appeal, Garland May asserts that the evi-
dence was insufficient to establish that the item he carried in the rob-
bery of the BB&T bank on August 9, 2000, was a real firearm, and
therefore his conviction under § 924(c) must be vacated. The term
"firearm," for purposes of § 924(c), is defined as "any weapon
(including a starter gun) which will or is designed to or may readily
be converted to expel a projectile by the action of an explosive." 18
U.S.C.A. § 921(a)(3)(A) (West 2000).
The evidence at trial consisted of the testimony of two witnesses
from the bank, who described the item carried by Garland May during
the robbery; they both testified that they firmly believed the item was
a real firearm. The Government also presented evidence that the
handgun and starter pistol seized from the Mays’ residence met the
definition of firearms under federal law. We conclude that this evi-
dence was sufficient for the jury to find Garland May guilty of bran-
dishing a firearm during the robbery of the BB&T bank on August 9,
2000. See United States v. Redd, 161 F.3d 793, 797 (4th Cir. 1998);
United States v. Hamrick, 43 F.3d 877, 883 n.9 (4th Cir. 1995).
We accordingly affirm Garland May’s convictions and sentence.
We affirm Jennifer May’s convictions of armed bank robbery and
brandishing a firearm during a crime of violence under Counts Two
and Three of the indictment, but vacate her conviction of bank rob-
bery under Count One of the indictment, vacate her sentence, and
remand for resentencing. 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 IN PART; VACATED AND REMANDED IN PART