UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 94-5655

ANTHONY GEORGE ROSS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Robert D. Potter, Senior District Judge.
(CR-94-5-P)

Submitted: January 30, 1996

Decided: February 16, 1996

Before HALL, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Kenneth P. Andresen, Charlotte, North Carolina, for Appellant. Wil-
liam A. Brafford, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Anthony George Ross's attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), contending that no
non-frivolous issues for appeal exist on the district court record in this
case. As required by Anders, counsel nonetheless noted possible
issues Ross desired him to appeal. The Government declined to file
a brief in response to counsel's brief. Ross was informed of his right
to file a supplemental brief but did not do so. This Court subsequently
ordered briefing from Ross's attorney and the Government regarding
a double jeopardy issue surrounding Ross's convictions under 18
U.S.C.A. § 2113(a), (d) (West Supp. 1995). The parties filed briefs on
that issue, and the case is now ripe for disposition.

Testimony at trial by Ross's co-conspirator, Melvin Ramseur,
revealed that Ross and Ramseur conspired to and robbed two
federally-insured banks on two separate dates. Ross, who already had
been convicted of multiple felonies, carried a handgun on both occa-
sions, and both robberies involved threats to injure bank employees.
In fact, Ross punched a female bank employee during the second rob-
bery, breaking her nose.

A FBI forensics expert also testified at trial that hair samples from
a cap and sweater found near the second crime scene matched hair
samples provided by Ross. Further, testimony from a police officer
and from relatives of Ramseur implicated Ross in the robberies.
Finally, an audio tape made at Ramseur's house and corroborating the
testimony of Ramseur's relatives was introduced into evidence and
was played for the jury. The tape was nearly inaudible, and the jury
was provided with a transcript of the tapes. The jury was informed
that the transcript itself was not evidence and was only for use in
helping the jury to understand the tapes.

Ross was found guilty and convicted of nine counts--two counts
of robbery, 18 U.S.C.A. § 2113(a), two counts of armed bank rob-
bery,* 18 U.S.C.A. § 2113(d), two counts of use of a firearm in rela-
_________________________________________________________________
*The indictment styled these offenses as assaults with a firearm during
the course of bank robberies.

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tion to a violent offense, 18 U.S.C.A. § 924(c)(1) (West Supp. 1995),
two counts of possession of a firearm by a felon, 18 U.S.C.
§ 922(g)(1) (1988), and one count of conspiracy to commit a federal
offense, 18 U.S.C. § 371 (1988). This appeal followed.

With regard to all but the double jeopardy issue on which we
ordered additional briefing, we find that counsel properly found the
appeal frivolous. There is no merit in the double jeopardy allegation
noted by counsel--that convictions under § 2113(d) and § 924(c)(1)
are improper. United States v. Johnson, 32 F.3d 82, 85-86 (4th Cir.
1994). There also is no merit in the claim that the evidence was insuf-
ficient to support the § 924(c)(1) conviction because no expert testi-
fied to the nature of the handgun as a "firearm." The record clearly
contains evidence that Ross carried a weapon during the robberies
that "[would or was] designed to . . . expel a projectile by the action
of an explosive." 18 U.S.C. § 921(a)(3) (1988). The lay testimony
regarding the handgun was sufficient. United States v. Jones, 907
F.2d 456, 460 (4th Cir. 1990).

The admission of the FBI agent's testimony was not error. The
agent's expert status is not at issue. And the evidence Ross submitted
that he was bald at the time of the robberies was not uncontested, as
Ross submits. Further, Ross's baldness at the time of the robberies
would not be dispositive of this issue because the hairs found in the
cap and sweater could have been Ross's nonetheless--they could
have been deposited in the clothing at an earlier point in time. The
district court did not abuse its discretion in admitting the testimony.
United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993) (standard
of review). Further, any error regarding the testimony would have
been harmless in light of Ramseur's testimony. Fed. R. Crim. P.
52(a). Neither did the district court err in admitting the tape of con-
versations at the Ramseur household. It was merely cumulative of tes-
timony already presented at trial, and it also was harmless.

Ross also had counsel raise frivolous issues regarding the sentence
--that the sentence is disproportionate to that of Ramsuer and that the
sentence is cruel and unusual. The trial court did not err in failing to
consider disparity between Ross's and Ramseur's sentences, even if
such a consideration were appropriate. United States v. Ellis, 975 F.2d
1061, 1066 (4th Cir. 1992). Ross was a career offender; Ramseur was

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not. Ross was the lead actor and instigator of the crimes and held
most of the cash for himself; Ramseur was cajoled into acting with
Ross and received little monetary gain. During the robberies Ross car-
ried a gun; Ramseur carried a steak knife. Finally, after pleading
guilty, Ramseur assisted the Government; Ross has not. Also, Ross's
sentence, which is less than death or life without parole, is not review-
able under the Eighth Amendment. Solem v. Helm , 463 U.S. 277, 290
(1983). We affirm the district court judgment with respect to all these
claims.

We find, however, that Ross's counsel failed to raise the possible
existence of an issue that was not frivolous regarding the convictions
under both § 2113(a) and § 2113(d) for both robberies. Section
2113(a) is a lesser-included offense of § 2113(d). United States v.
Whitley, 759 F.2d 327, 331 (4th Cir.) (en banc) (citing Prince v.
United States, 352 U.S. 322 (1957)), cert. denied, 474 U.S. 873
(1985). Thus, the district court should not have entered convictions on
both the § 2113(a) and (d) guilty verdicts, but should have entered
only the § 2113(d) convictions. Id. at 330-31. We vacate that portion
of the judgment convicting Ross of § 2113(a) crimes.

Thus, although we affirm the remainder of the judgment, we vacate
the judgment with regard to the § 2113(a) convictions and remand the
case for the district court to strike the § 2113(a) convictions. We deny
Appellant's motions for provision of a transcript at government
expense and for appointment of new counsel. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such a peti-
tion would be frivolous then counsel may move in this court for leave
to withdraw from representation. Counsel's motion must state that a
copy thereof was served on the client. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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