United States v. Joseph Paul Young

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, KERMIT E. BYE and BOBBY E. SHEPHERD. Roger L. Wollman, Authoring Judge (PUBLISHED) [3807479] [10-3587]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3587
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United States of America,
Appellee,
v.
Joseph Paul Young,
Appellant.

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*
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* Appeal from the United States
* District Court for the
* District of South Dakota.
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Submitted: May 13, 2011
Filed: July 14, 2011
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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury found Joseph Paul Young guilty of three counts of bank robbery, in
violation of 18 U.S.C. § 2113(a). The district court1 sentenced him to 216 months’
imprisonment and ordered that the first 36 months of the sentence run concurrently
with an undischarged West Virginia sentence. Young appeals, arguing that the
district court abused its discretion in admitting certain evidence, procedurally erred
by ordering only 36 months to run concurrently to his West Virginia sentence, and
imposed a sentence that was substantively unreasonable. We affirm.
1

The Honorable Roberto A. Lange, United States District Court Judge for the
District of South Dakota.

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I. Background
Young robbed three different banks in South Dakota between August 13 and
September 26, 2007. He wore a baseball hat, the same shirt, and gave similar verbal
commands during the robberies. The tellers from each bank identified Young and
testified against him. The government sought to admit photos and video surveillance
evidence from two Minnesota bank robberies. The district court overruled Young’s
objection and admitted the evidence, accompanied by a limiting instruction, which
was later included with the final jury instructions.
During the sentencing hearing, the district court determined that Young
qualified as a career criminal and increased his offense level pursuant to U.S.
Sentencing Guidelines Manual (Guidelines) § 4B1.1. After calculating an advisory
Guidelines range of 210 to 262 months’ imprisonment, the district court imposed a
216-month sentence, with 36 months to run concurrently to Young’s prior 240-month
undischarged West Virginia sentence for bank robbery.
II. Discussion
A. Minnesota Bank Robbery Evidence
Young asserts that the district court committed reversible error when it
permitted the government to present evidence of the Minnesota bank robberies.2 We
review the district court’s admission of evidence for abuse of discretion. See United
2

In his opening brief, Young challenged the admission of evidence from three
West Virginia bank robberies that he committed. Young now concedes that he
waived his right to appeal any error stemming from its admission. See United States
v. Booker, 576 F.3d 506, 511 (8th Cir. 2009) (“While forfeited claims are subject to
appellate review under the plain error standard, waived claims are unreviewable on
appeal.”).
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States v. Hill, 638 F.3d 589, 592 (8th Cir. 2011). Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”
Fed. R. Evid. 401. Federal Rule of Evidence 404(b) prohibits the admission of
evidence of other crimes, wrongs, or acts “to prove the character of a person in order
to show action in conformity therewith.” Such evidence is admissible for other
limited purposes, however, such as proof of identity. Fed. R. Evid. 404(b).
“Preliminary questions concerning . . . the admissibility of evidence shall be
determined by the court” and “[w]hen the relevancy of evidence depends upon the
fulfillment of a condition of fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of the fulfillment of the
condition.” Fed. R. Evid. 104; United States v. Almendares, 397 F.3d 653, 662 (8th
Cir. 2005). When the district court admits evidence that is admissible for one purpose
but not admissible for another purpose, “the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.” Fed. R. Evid. 105.
Relevant evidence may be excluded if its “probative value is substantially outweighed
by the danger of unfair prejudice.” Fed. R. Evid. 403.
Young’s defense was that he was not the South Dakota bank robber, placing
the identity of the robber at issue. The Minnesota bank robbery evidence was thus
admissible under Rule 404(b) to prove Young’s identity as the South Dakota bank
robber. The Minnesota bank robbery evidence was conditionally relevant for that
purpose if it was sufficient for a jury to find (1) that Young robbed the Minnesota
banks, and (2) that the same person robbed the Minnesota and South Dakota banks.
The district court found that the Minnesota bank robbery evidence was
sufficient to support such a finding. “If the conduct underlying the prior act and the
current charged offense involved a unique set of ‘signature facts,’ then evidence of
the prior act is admissible to show that the same person committed both crimes.”
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Almendares, 397 F.3d at 662. “Two factors relevant to this determination are the
distinctiveness of the facts that make the crimes unique and the distance between the
crimes in space and time.” Id. The district court found that “there certainly [was] a
signature feature or signature element given that the [robber’s] shirt [was] the same
and at least in some of these bank robberies the hat [was] the same.” Additionally,
the Minnesota robberies occurred after the second South Dakota robbery and
preceded the third South Dakota robbery. The district court stated that it “almost
approache[d] beyond a reasonable doubt that the person who robbed the two
Minnesota banks appear[ed] to be the same person who robbed the three South
Dakota banks.”
In overruling Young’s objection to the admission of evidence regarding the
Minnesota bank robberies, the district court noted that “the words spoken are similar
among all five bank robberies.” Young contends that the government’s failure to
introduce evidence at trial regarding the words used during the Minnesota bank
robberies undercut part of the rationale relied upon by the district court to admit the
Minnesota robberies evidence. Thus, Young argues, because the evidence that was
admitted did not support the government’s own theory of admissibility, the district
court abused its discretion in admitting the evidence. We do not agree, for although
evidence regarding the words used during the Minnesota robberies would no doubt
have enhanced the probative value of the Minnesota evidence, as well as the grounds
for its admission, the evidence that was admitted was by itself sufficient for both
purposes.
Young contends that because the identity of the bank robber in the Minnesota
evidence was unknown, the prejudicial effect of the evidence outweighed its
probative value. The district court determined that the potential prejudicial effect of
admitting the evidence did not substantially outweigh its probative value and that any
prejudice could “be cured through a limiting instruction,” which it gave both before
the evidence was presented and again with the final jury instructions. See Fed. R.
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Evid. 105; United States v. Littlewind, 595 F.3d 876, 881 (8th Cir. 2010) (“[T]he risk
[of unfair prejudice] was adequately reduced by two cautionary instructions from the
district court—one when the prior crimes evidence was first admitted and another
within the final jury instructions. Such limiting instructions minimize the danger of
unfair prejudice.”). The instruction provided that the evidence was being presented
for the “limited purpose to help [the jury] decide identity.” It went on: “To use this
evidence on identity, you must find by the greater weight of the evidence that
[Young] committed one or both of the Minnesota robberies. If you do not so find by
the greater weight of the evidence, then you must disregard such evidence in its
entirety.” We conclude that the district court did not abuse its discretion in admitting
the evidence for the limited purpose set forth in its instruction.
B. Significant Procedural Error
Young concedes that the district court correctly calculated the advisory
sentencing range, but he argues that the district court procedurally erred when it
failed to recognize a preference in the Guidelines for concurrent sentencing and failed
to adequately explain its reasons for imposing a mostly consecutive sentence. We
review the imposition of sentences by applying an abuse-of-discretion standard.
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). We first
ensure that the district court did not commit a significant procedural error. Id.
The district court properly rejected Young’s assertion that there is a preference
for sentences to run concurrently to undischarged sentences in the Guidelines. Young
argues that § 5G1.3(b) “indicates a clear policy preference toward consideration of
concurrent or partially concurrent sentences when certain crimes are inextricably
intertwined.” Appellant’s Br. 18. Section 5G1.3(b) instructs the district court to give
credit “for time served and that sentences should run concurrently when a defendant
is subject to a prior, undischarged sentence.” United States v. Becker, 636 F.3d 402,
407 (8th Cir. 2011). However, it applies only “where a defendant is subject to an
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undischarged term of imprisonment for another offense that is ‘relevant conduct to
the instant offense of conviction . . . and that was the basis for an increase in the
offense level for the instant offense.’” Id. (quoting Guidelines § 5G1.3(b)). Young’s
West Virginia offense occurred almost one year after the South Dakota robberies and
was not considered relevant conduct by the district court. Accordingly, § 5G1.3(b)
does not apply to Young’s undischarged West Virginia sentence. Instead, § 5G1.3(c)
applies and instructs the district court to order the sentence “to run concurrently,
partially concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant offense.”
Young asserts that the district court erred by failing to consider a relevant
circumstance, i.e., whether the West Virginia and South Dakota bank robberies
constituted the same course of conduct. See § 5G1.3(c), cmt. n.3(A)(v) (“Under
subsection (c), . . . the court should consider the following: . . . (v) any other
circumstances relevant to the determination of an appropriate sentence for the instant
offense.”). The district court, however, did consider Young’s argument that the six
robberies were part of the same course of conduct and that the South Dakota sentence
should have a 75% to 25% concurrent-to-consecutive ratio to the undischarged West
Virginia sentence. The district court not only considered Young’s argument, but
characterized it as “creative” and then noted that the Guidelines do not provide a
specific mathematical computation for determining what amount of a sentence to
impose concurrently.
Young contends that the district court failed to consider the § 3553(a) factors
in determining whether to impose a consecutive, partially concurrent, or concurrent
sentence. Contrary to Young’s assertion, the district court considered the length of
his undischarged West Virginia sentence and each of the § 3553(a) factors. It
specifically noted that prior convictions and prison sentences had not deterred Young
and that he continued to deny responsibility for the South Dakota robberies. After
determining that it could sentence Young to consecutive twenty-year sentences for
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each count, the district court considered the undischarged West Virginia sentence and
stated “[g]iven that he is already serving 20 years on another bank robbery case, the
Court thinks the appropriate sentence here to be towards the bottom end of the
guideline range of 216 months, which is equivalent of 18 years.” The district court
also ordered 36 months of the 216-month sentence to run concurrently to the
undischarged West Virginia sentence.
C. Substantive Error
In the absence of procedural error, we consider the substantive reasonableness
of the sentence imposed under a deferential abuse-of-discretion standard, taking into
account the totality of the circumstances. Feemster, 572 F.3d at 461. “If the
defendant’s sentence is within the Guidelines range, then we may, but are not
required to, apply a presumption of reasonableness.” Id. (internal quotation marks
omitted). “A district court abuses its discretion when it (1) fails to consider a relevant
factor that should have received significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” Id. (internal quotation
marks omitted).
Young argues that the district court abused its discretion in sentencing him
within the 210 to 262-month advisory guideline range. He contends that in light of
his prior 240-month undischarged West Virginia sentence, a within-guidelines range
sentence was substantively unreasonable and the sentence was greater than necessary,
in violation of the parsimony principle of 18 U.S.C. § 3553(a). We disagree. As set
forth above, the district court considered the undischarged West Virginia sentence
when it imposed the sentence “towards the bottom end of the guideline range” and
allowed 36 months of the sentence to run concurrently to the undischarged sentence.
This is “not the rare case in which a within-the-range sentence can be found to
transgress the parsimony principle” of § 3553(a). United States v. San-Miguel, 634
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F.3d 471, 475 (8th Cir. 2011). Accordingly, we conclude that the district court did
not abuse its discretion in imposing the sentence.
III. Conclusion
The conviction and sentence are affirmed.
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