USA v. Luther Elder

Filing

UNPUBLISHED OPINION FILED. [16-10617 Affirmed] Judge: TMR, Judge: PRO, Judge: JWE. Mandate pull date is 02/23/2017 for Appellant Luther Elder [16-10617]

Case: 16-10617

Document: 00513860726

Page: 1

Date Filed: 02/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10617
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
February 2, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUTHER ELDER,

Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-170-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Luther Elder appeals the sentence imposed following his guilty plea
conviction for interference with commerce by robbery in violation of 18 U.S.C.
§ 1951(A). He argues that the district court clearly erred in applying the
U.S.S.G. § 2B3.1(b)(2)(B) firearm enhancement. Specifically, he argues that
the only evidence of there being a firearm involved in the offense was from the
contradictory and self-serving statements of his co-conspirators.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-10617

Document: 00513860726

Page: 2

Date Filed: 02/02/2017

No. 16-10617
We review the district court’s application of the Sentencing Guidelines
de novo and its findings of fact for clear error. United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court may consider
any relevant information, without regard to admissibility under the rules of
evidence, if the information has “sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3(a), p.s.; United States v. Zuniga, 720 F.3d
587, 590-91 (5th Cir. 2013). If the PSR’s factual recitation bears sufficient
indicia of reliability, the defendant has the burden of showing that the PSR is
inaccurate. Zuniga, 720 F.3d at 591.
The statements of the manager of the store that was robbed and Elder’s
co-conspirator, Brandon Walker, were consistent regarding the fact that two
handguns were used during the robbery, and Walker specified that a 9
millimeter firearm with scratches on it was one of the handguns used during
the robbery. Given that Walker was the get-away driver for the robbery, he
had the opportunity to observe the handguns that were used during the
robbery.

Additionally, Walker’s statement was corroborated by evidence

discovered during the ensuing criminal investigation. While Elder argues that
his cross-examination of the investigating agent constituted rebuttal evidence,
it only constituted an alternative theory of the evidence. “Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” United States v. Harris, 740 F.3d 956, 967. Thus, on the
record, viewed in its entirety, a sufficient indicia of reliability accompanied
Walker’s statement that a firearm was used in the robbery, and the district
court’s application of the firearm enhancement was not clearly erroneous. See
id; see also Zuniga, 720 F.3d at 590-91.
AFFIRMED.

2

The district court’s judgment is