                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-14826                ELEVENTH CIRCUIT
                                                               JUNE 4, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                    D. C. Docket No. 06-00422-CR-JEC-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

REGGIE ANDREWS, JR.,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                                (June 4, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Reggie Andrews, Jr., appeals his conviction for one count of armed bank
robbery, in violation of 18 U.S.C. § 2113(a), (d), and one count of use of a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He argues

that his codefendants’ testimony against him was incredible and that there were

discrepancies in the other witnesses’ descriptions of the robbers, such that the

evidence was insufficient to support his conviction.

      Where, as here, the defendant fails to make a motion for judgment of

acquittal at the close of all evidence, he forecloses any review of sufficiency of the

evidence, except where a miscarriage of justice would result. United States v.

Tapia, 761 F.2d 1488, 1491 (11th Cir. 1985) (internal quotation marks and citation

omitted) (per curiam). The miscarriage-of-justice standard “require[s] a finding

that the evidence on a key element of the offense is so tenuous that a conviction

would be shocking.” Id. at 1492 (internal quotation marks and citation omitted).

We will affirm a guilty verdict “unless no trier of fact could have found guilt

beyond a reasonable doubt.” United States v. Toler, 144 F.3d 1423, 1428 (11th

Cir. 1998) (citation omitted).

      We draw all reasonable inferences and credibility determinations in favor of

the government. United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir. 2008).

“[T]he jury is free to choose between or among the reasonable conclusions to be

drawn from the evidence presented at trial. . . .” Id. (quoting United States v.



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Browne, 505 F.3d 1229, 1253 (11th Cir. 2007)). Because credibility

determinations are within the exclusive province of the jury, we will not overturn

them unless the testimony was incredible as a matter of law. United States v.

Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (citations omitted). A government

witness’s testimony is only incredible as a matter of law if it is “unbelievable on its

face,” meaning that it describes “facts that the witness physically could not have

possibly observed or events that could not have occurred under the laws of nature.”

Id. (internal quotation marks, alterations, and citation omitted). “[T]he fact that the

witness has consistently lied in the past, engaged in various criminal activities, and

thought that his testimony would benefit him does not make his testimony

incredible.” Id. (internal quotation marks, alterations, and citations omitted).

      In order to convict a defendant for armed bank robbery, the government

must prove beyond a reasonable doubt that he (1) took money or property

(2) belonging to a bank (3) from the person or presence of another (4) by force and

violence or by intimidation. 18 U.S.C. § 2113(a). Section 2113(d) further requires

proof beyond a reasonable doubt that the defendant put a person’s life in jeopardy

by using a dangerous weapon or that he assaulted a person during commission of

the bank robbery. Id. at § 2113(d). “The use of a gun [during the robbery] is per

se sufficient cause to impose the enhanced sentence” in § 2113(d). United States v.



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Tutt, 704 F.2d 1567, 1569 (11th Cir. 1983) (internal quotation marks and citation

omitted) (per curiam). In order to convict Andrews under § 924(c), the

government was required to prove beyond a reasonable doubt that he (1)

committed a federal crime of violence and (2) brandished a firearm “during and in

relation to” that crime. 18 U.S.C. § 924(c)(1)(ii).

      Upon review of the record and consideration of the parties’ briefs, we

affirm. The government presented ample evidence in support of Andrews’

conviction. Not only did the government offer the testimony of multiple witnesses

to the robbery, the testimony of Andrews’ codefendants implicating Andrews, and

the testimony of a sergeant in the United States Army who Andrews used as an

alibi, the government presented significant physical evidence linking Andrews to

the crime.

      The government presented evidence that Andrews entered the Wachovia

carrying a shotgun and duffel bag, while wearing a ski mask and gloves; that he

pointed a shotgun at the tellers and a customer; and, that one of Andrews’

codefendants struck that customer with his own shotgun. The government also

presented evidence that Andrews instructed the tellers to put their money into the

duffel bag and that he was holding the bag when the dye packs exploded during the

escape. Physical evidence, including Andrews’ DNA on the dye-stained gloves,



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and cellular telephone records corroborated the various witnesses’ testimony.

None of the witnesses’ testimony was incredible as a matter of law, and the jury

was free to choose among the reasonable conclusions to be drawn from all the

evidence. Drawing all reasonable inferences in favor of the jury’s verdict, none of

the evidence on any element of the offenses is tenuous.

      For the foregoing reasons, we affirm Andrews’ convictions.

      AFFIRMED.




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