U.S. v. Davis

• Decision Date: 09 February 2006
• Docket Number: No. 05-5013.,05-5013.
• Citation: 437 F.3d 989
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence Lee DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

437 F.3d 989

UNITED STATES of America, Plaintiff-Appellee, v. Clarence Lee DAVIS, Defendant-Appellant.

No. 05-5013.

United States Court of Appeals, Tenth Circuit.

February 9, 2006.

COPYRIGHT MATERIAL OMITTED

Art Fleak, Tulsa, OK, for defendant-appellant.

Kevin Danielson, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Northern District of Oklahoma, Tulsa, OK, for plaintiff-appellee.

Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.

BRISCOE, Circuit Judge.

Clarence Davis appeals his conviction for conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371; aiding and abetting an attempted armed bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a) and (d); brandishing, carrying, and possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c); and for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He also appeals his 360 month sentence.^*

Davis argues that there was insufficient evidence to support his armed robbery convictions, and that the district court erred by admitting evidence concerning a purported false alibi and by instructing the jury on false exculpatory statements. He also challenges his sentence, arguing that his sentence was unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that his classification as a career offender for sentencing purposes violated his Sixth Amendment rights because he was neither charged with being a career offender, nor was it proven to a jury beyond a reasonable doubt. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm both his convictions and his sentence.

I.

On April 13, 2004, at approximately 9:45 a.m., Loyel Collier, a security guard for Riverwest Credit Union in Tulsa, Oklahoma, was sitting close to the union's front doors when he noticed two men enter the union and immediately step to the right. He thought this was unusual because most people upon entering walk straight toward the tellers. One of the men walked within arm's reach of Collier, pulled a gun from his waistband, and said, "Don't move." Collier, who had an extensive military background with training in the use of firearms and the identification of individuals, pulled out his gun and fired twice. Collier's first shot hit the glass partition separating him from the two men, but the second shot hit the man holding the gun. The two men then ran out of the door and up the street. When Collier followed, he saw an unoccupied red car with its engine running at the entrance of the union. At trial, Collier testified that he got a good look at both men, who were not wearing masks, before they left the union. He identified Shelby Robinson as the man holding the gun, and stated that Clarence Davis "appeare[d] to be the one with him." Vol. IV at 16. Collier estimated that from the time the two men entered the building until they ran out, only four to five seconds had elapsed.

That same morning, Melissa Sloan had driven to a park to meet Robinson, who was her boyfriend. Robinson had asked her to meet him there so he could give her money to pay an outstanding bill. Eventually, Sloan received a phone call from Robinson, who was crying. He asked her to come and get him at a convenience store in the vicinity of the union. When Sloan arrived at the store, Robinson was not there, so she called him on his cell phone. Robinson instructed Sloan to pick him up near the expressway. Sloan testified that at the pick-up location Robinson and another man jumped out of some bushes and got into her vehicle. She stated that Robinson sat in the front passenger seat, bleeding badly, while the other man sat in the back seat. Sloan drove the two men to her home where they were picked up minutes later by someone else.

Sloan testified that she never got a good look at the person in the back seat,¹ but she overheard Robinson refer to him as "Pip, or something like that." Id. at 52-53. Davis's girlfriend, Jeana Kendricks, testified that Davis's nickname was "Peppy." Consistent with that testimony, Robinson's brother stated that Davis was often known as "Pep" or "Big Daddy."

According to Sloan, during the trip to her house, the man in the back seat grabbed her cell phone and used it. Phone records admitted at trial indicate that several phone calls were placed from Sloan's cell phone to Kendricks's cell phone between 9:51 a.m. and 10:09 a.m, right after the time of the robbery. Sloan testified that she did not make any phone calls to Kendricks on April 13, or for that matter, she stated that she did not even know Kendricks. Likewise, Kendricks testified that she did not know Sloan. Other phone records admitted at trial established: (1) a call from Robinson's cell phone to Kendricks's cell phone at 7:35 a.m.; (2) four calls from Sloan's cell phone to Robinson's cell phone between 8:50 and 9:00 a.m.; (3) six calls from Robinson's cell phone to Sloan's cell phone between 9:17 a.m. and 9:50 a.m., (4) one call from Kendricks's cell phone to Sloan's cell phone at 10:29 a.m.; (5) one call from Kendricks's cell phone to Robinson's cell phone at 11:41 a.m; (6) one call from Kendricks's cell phone to Sloan's cell phone at 11:42 a.m.; and (7) one call from Robinson's cell phone to Kendricks's cell phone at 12:25 p.m.

In the days following the attempted robbery, law enforcement officers recovered a gun and a black coat hidden in a residential neighborhood close to the union, and found a long-sleeved t-shirt, a pair of gloves, a "do-rag," and a piece of a flannel shirt along the fence line of the expressway. A DNA analyst compared a buccal swab from Davis to a sample taken from the "do-rag" and found a match. Davis was approximately one in 31,000 African Americans with DNA matching the "do-rag" sample. This was a fairly low figure due, in part, to the fact that only a partial profile was obtained from the "do-rag."

Eight days after the robbery, an FBI agent interviewed Davis. Davis explained that for the past two weeks he had been working at a company named TCIM from eight in the morning until four in the afternoon. Later on in the interview, Davis changed his story and informed the FBI agent that he was at his girlfriend's house on the day of the robbery. A TCIM representative testified that Davis had neither worked at TCIM, nor interviewed for a position there.

II.

A. Sufficiency of Evidence

Davis contends that the evidence was insufficient to convict him of conspiracy to commit armed bank robbery and aiding and abetting an attempted bank robbery.

"We review sufficiency of the evidence claims de novo, asking only whether, taking the evidence—both direct and circumstantial, together with reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find [Davis] guilty beyond a reasonable doubt." United States v. Allen, 235 F.3d 482, 492 (10th Cir.2000) (internal quotations omitted). "We do not question the jury's credibility determinations or its conclusions about the weight of the evidence." Id. "`The evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. Instead, the evidence only has to reasonably support the jury's finding of guilt beyond a reasonable doubt.'" United States v. Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir.2004) (citation omitted).

To convict a defendant of armed bank robbery, the government has the burden to prove that (1) the defendant took, or attempted to take, money belonging to a bank, credit union, or any savings and loan association; (2) by using force and violence, or intimidation; (3) the deposits of the institution were federally insured; and (4) in committing or attempting to commit the offense, the defendant assaulted any person, or put in jeopardy the life of any person by the use of a dangerous weapon or device. 18 U.S.C. § 2113(a), (d); United States v. Wright, 215 F.3d 1020, 1028 (9th Cir.2000).

Here, the government charged Davis with conspiring to commit armed robbery and aiding and abetting an attempted armed robbery. "With respect to the charge of conspiracy, the government was required to prove (1) an agreement between two or more persons to break the law, (2) an overt act in furtherance of the conspiracy's objects, and (3) that . . . [Davis] willfully joined in the conspiracy." United States v. Summers, 414 F.3d 1287, 1295 (10th Cir.2005) (citing United States v. Shepard, 396 F.3d 1116, 1123 (10th Cir. 2005)). Under the aiding and abetting theory, "the government was required to demonstrate beyond a reasonable doubt that . . . [Davis] (1) willfully associated with the charged criminal venture and (2) aided the venture through affirmative action." Id. (citing United States v. Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir. 2004)).

Davis cites this court's recent decision in United States v. Summers to argue that the evidence presented at his trial was insufficient to support his convictions. In Summers, we held that the evidence presented at trial was insufficient to support the defendant's convictions for aiding and abetting a bank robbery and conspiracy to commit bank robbery. 414 F.3d at 1291-92. Specifically, we held that the government's theory that Summers was the getaway driver at the bank and was a member of a conspiracy could be supported only by "piling inference upon inference." Id. at 1295. As to the aiding and abetting charge, we noted that no witnesses could positively identify Summers either before or after the robbery. Id. at 1296. As to the conspiracy charge, we concluded that there was insufficient evidence to adduce that Summers "willfully joined or participated in the conspiracy." Id. In particular, we observed that the government failed to produce evidence linking Summers to any post-robbery activities...