United States v. Earl M. Treadway , 26 F. App'x 594 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1882
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Earl M. Treadway, * Northern District of Iowa.
* [UNPUBLISHED]
Appellant. *
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Submitted: December 7, 2001
Filed: December 27, 2001
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Before HANSEN, FAGG, and BEAM, Circuit Judges.
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PER CURIAM.
A jury convicted Earl M. Treadway of bank robbery, in violation of 18 U.S.C.
§ 2113(d), and possession of a firearm during a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A). The district court1 sentenced him to consecutive terms of 36
months and 60 months imprisonment and concurrent terms of 5 years and 3 years
supervised release. Treadway appeals, raising three issues.
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
First, Treadway argues that the evidence at trial was insufficient to support the
verdict. Viewing the evidence in the light most favorable to the verdict, we conclude
that it was sufficient--the jury simply chose to credit the government's witnesses
rather than the defense's witnesses. See United States v. Stroh, 176 F.3d 439, 440
(8th Cir. 1999) (stating that in considering the sufficiency of the evidence, this court
reviews the evidence in the light most favorable to the verdict and may neither weigh
the evidence nor assess witness credibility, and that reversal is warranted only if no
reasonable jury could have found defendant guilty).
Second, Treadway argues that the district court failed to comply with Federal
Rule of Criminal Procedure 23(b) when it excused a juror and allowed the case to be
tried to an eleven-person jury. We conclude that Treadway is not entitled to any relief
because both he and his counsel orally consented in open court to proceed with an
eleven-person jury and thereby invited the alleged error of which he now complains.
See United States v. Mahler, 141 F.3d 811, 814-15 (8th Cir.) (holding that defendant
who orally agreed on the record to proceed with an eleven-person jury, but did not
reduce the stipulation to writing, invited error and was not entitled to reversal for
alleged Rule 23(b) error), cert. denied, 525 U.S. 885 (1998).
Third, Treadway argues that the district court clearly erred in applying a 2-level
enhancement under U.S.S.G. § 3B1.1(c) for being the organizer, leader, manager, or
supervisor of criminal activity. With the enhancement, Treadway’s Guidelines
imprisonment range on the bank robbery conviction2 was 70-87 months; without it,
the range would have been 57-71 months. The court departed downward to 36
months imprisonment under U.S.S.G. § 5H1.4. Thus, we conclude that this issue is
unreviewable. See United States v. Baker, 64 F.3d 439, 441 (8th Cir. 1995) (holding
2
Treadway’s firearm conviction carried a statutory minimum sentence of 60
months imprisonment which must be imposed consecutively to the sentence for the
bank robbery. See 18 U.S.C. § 924(c)(1)(A); U.S.S.G. § 3D1.1(b).
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that allegedly erroneous application of enhancement was unreviewable where the
defendant received a sentence below the applicable Guidelines range with or without
the enhancement).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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