United States v. Derrick Wiggins ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4051
DERRICK LAVALLE WIGGINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-98-85-BO)
Submitted: October 29, 1999
Decided: November 29, 1999
Before HAMILTON and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William Arthur Webb, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, John S. Bowler, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Derrick LaValle Wiggins ("Wiggins") appeals his con-
victions and sentence for armed bank robbery in violation of 18
U.S.C. § 2113(a), (d) (1994), use of a firearm during and in relation
to a crime of violence in violation of 18 U.S.C.A.§ 924(c)(1) (West
Supp. 1999), and aiding and abetting with respect to both crimes in
violation of 18 U.S.C. § 2 (1994). Finding no reversible error, we
affirm.
On January 27, 1998, Wiggins and three co-defendants robbed the
Central Carolina Bank and Trust in Raleigh, North Carolina. Wig-
gins' co-defendants cooperated with the Government and testified in
detail as to the planning of the robbery. According to trial testimony,
Wiggins obtained a shotgun from co-defendant Ambakisye Asim
Ayoluwa ("Ayoluwa") at least one day prior to the robbery. Together,
Wiggins and Ayoluwa sawed off both the stock and the barrel of the
shotgun. Wiggins, co-defendant Jermaine Vincent Bethel ("Bethel"),
and Ayoluwa subsequently met at Ayoluwa's trailer and planned the
robbery.
On the day of the robbery, Wiggins and Bethel entered the bank
and jumped over the teller counter. They carried a silver pistol and a
sawed-off shotgun respectively. As Wiggins and Bethel collected
cash from the teller drawers, they heard a car horn warning that
seemed to lead to their frantic departure. As they made their escape,
the tellers identified the getaway vehicle as a dark Jeep Cherokee that
co-defendant Antonio Reese admitted to stealing earlier that day. The
bank sustained a loss of $20,266.55.
The Raleigh Police Department recovered the sawed-off shotgun
from Bethel's residence as well as $2000 from behind Ayoluwa's
trailer. The FBI subsequently recovered an empty twenty gauge shot-
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gun shell box, a plastic shotgun butt plate, and a shotgun recoil pad
during a search of Wiggins' trailer. Additionally, Rasheeda Jordan,
the mother of Wiggins' child, testified that prior to the robbery they
were very short of funds. She recalled that Wiggins had disappeared
the day of the robbery and reappeared the next day with $850 in cash
to cover the bills.
Based on this evidence and other testimony provided at trial, a jury
found Wiggins guilty of armed bank robbery, use of a firearm during
and in relation to a crime of violence, and aiding and abetting with
respect to both crimes. Wiggins raises three issues on appeal:
(1) whether the district court erred in enhancing the sentence
imposed for Wiggins' § 924(c)(1) violation on the basis that the
offense involved a short-barreled shotgun, without requiring a jury
finding as to the type of firearm used; (2) whether the Government's
offer of a possible substantial assistance motion in exchange for the
co-defendants' cooperation constituted an illegal gratuity pursuant to
18 U.S.C. § 201(c)(2) (1994); and (3) whether sufficient evidence
supported Wiggins' conviction for armed bank robbery.
Citing Jones v. United States, 526 U.S. 227 (1999), Wiggins first
argues that § 924(c)(1)'s enhancement provision is a separate element
of a § 924(c)(1) offense, and therefore, the jury was required to make
a finding as to the type of firearm used in the offense.* During the
trial, however, Wiggins did not object to the district court's jury
instruction. Accordingly, our review is limited to plain error.
Before an appellate court can correct an error not raised at trial,
there must be (1) an "error," (2) that is"plain," and (3) that "affect[s]
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*In Jones, the Supreme Court addressed the federal carjacking statute,
18 U.S.C.A. § 2119 (West Supp. 1999), which generally provides for a
maximum sentence of fifteen years of imprisonment. The statute pro-
vides, however, a sentence of up to twenty-five years if serious bodily
injury results from the offense, or up to life imprisonment or the death
penalty if death results. The Supreme Court held that the provisions
establishing higher penalties set forth additional elements of the offense.
Facts triggering an enhancement, therefore, needed to be submitted to a
jury and proven by the Government beyond a reasonable doubt. See
Jones, 119 S. Ct. at 1219.
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substantial rights." United States v. Olano , 507 U.S. 725, 732 (1993).
In determining whether the error is "plain," Olano explains that "[a]t
a minimum, a court of appeals cannot correct an error pursuant to
Rule 52(b) unless the error is clear under current law." Id. at 734. If
a defendant establishes these three prongs, the appellate court must
then determine that the forfeited error "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings." Id. at 732.
In light of the split between the circuits that have considered the
issue, we cannot conclude "that the error is clear under current law."
Compare United States v. Eads, No. 98-1331, 1999 WL 626094, at
*8 (10th Cir. Aug. 18, 1999) (to be reported at 191 F.3d 1206) (con-
cluding, after Jones was decided, that the type of firearm used or car-
ried is a sentencing enhancement under § 924(c) rather than an
element of the offense), and United States v. Castillo, 179 F.3d 321,
327-28 (5th Cir. 1999) (same), with United States v. Alerta, 96 F.3d
1230, 1235 (9th Cir. 1996) (concluding that the type of firearm used
is an element of the offense under § 924(c)), and United States v.
Sims, 975 F.2d 1225, 1235-36 (6th Cir. 1992) (same). Consequently,
Wiggins cannot satisfy the first two prongs for establishing plain
error.
Even if Wiggins had established that the district court had commit-
ted "an `error' that is `plain' and that`affect[s] substantial rights,'"
Olano, 507 U.S. at 732, Wiggins fails to establish the fourth prong.
Wiggins cannot show that the error "seriously affects the fairness,
integrity, or public reputation of judicial proceedings" because the
evidence that he used or possessed a short-barreled shotgun in further-
ance of the bank robbery was "overwhelming" and "essentially
uncontroverted." Johnson v. United States, 520 U.S. 461, 470 (1997)
(affirming defendant's conviction notwithstanding an error in omit-
ting an element of the crime in the jury instructions).
With respect to the other issues Wiggins raises on appeal, we find
that the district court did not abuse its discretion in denying Wiggins'
motion to suppress the statements of his co-defendants on the ground
that their statements were made in exchange for promises of leniency
in violation of 18 U.S.C. § 201(c)(2). As we recently held, the Gov-
ernment "does not violate § 201(c)(2) by granting immunity or
leniency or entering into plea agreements to obtain testimony." See
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United States v. Richardson, No. 98-4139, 1999 WL 686892, *4 (4th
Cir. Sept. 3, 1999).
We also conclude that sufficient evidence supported Wiggins' con-
viction for armed bank robbery. We must uphold a jury's verdict if,
taking the view most favorable to the Government, there is substantial
evidence to support it. See Glasser v. United States, 315 U.S. 60, 80
(1942). We have reviewed the record and are satisfied that substantial
evidence supports Wiggins' conviction.
Accordingly, we affirm Wiggins' convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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