                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      April 5, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                        No. 12-3125
 RAYMOND L. ROGERS,                            (D.C. No. 6:10-CR-10186-JTM-1)
                                                           (D. Kan.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.


      A jury convicted Defendant Raymond Rogers of robbing a federally-insured

bank in violation of 18 U.S.C. § 2113(a) (Count I); brandishing a firearm during the

robbery in violation of 18 U.S.C. § 924(c)(1)(A) (Count II); and possessing a firearm

after a felony conviction in violation of 18 U.S.C. § 922(g)(1) (Count III). The

district court sentenced him to 234 months imprisonment. On appeal, Defendant

challenges both his convictions and sentence. Defendant argues the district court

improperly (1) denied his motion for judgment of acquittal pursuant to Fed. R. Crim

P. 29, (2) enhanced his base offense level under U.S.S.G. § 2B3.1(b)(4)(B), and

(3) denied his right to allocution in violation of Fed. R. Crim. P. 32(i)(4)(A)(ii). Our


      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We reject each of

Defendant’s arguments, and affirm.

                                         I.

      The Government’s evidence as reflected in the record established that on the

morning of December 1, 2010, three black males entered a branch of the Equity Bank

in Wichita, Kansas. The branch manager and a teller, both women, were inside the

bank. All three men wore masks and gloves. Two of the men brandished handguns;

the third man carried a white bag. The first armed man covered the lobby area and

provided lookout while periodically pointing his gun at the women. The other two

men jumped the counter and ordered the women to “get down on the ground.” After

emptying the teller drawers, the two men instructed the women to open the vault.

The second armed man yelled, “If you don’t open it, I’ll shoot you. Don’t make me

shoot you.” The branch manager testified she thought she was going to be shot. The

security video showed that after the vault was opened, the manager crouched in the

corner outside the vault:

      I just wanted to get as small as possible, . . . I didn’t know what to do
      so I was thinking, what am I supposed to do now, but I wanted to get as
      small as possible because I was kind of worried that they were going to
      shoot me on the way out because, you know, even though . . . they’re
      covered up, . . . you never know if they’re thinking, oh, she saw me or
      something, I don’t know. I was worried they were going to shoot me
      on the way out.

      The three men fled in a green Chevy Tahoe that had been reported stolen

earlier that morning. A few moments after the robbery, a motorist in the vicinity of


                                         2
the robbery reported red smoke coming from the Tahoe. Among the $102,743 stolen

from the bank were bait money and dye-packs. A dye-pack is a bundle of what looks

like money, but inside the bundle is a combustible canister of tear gas and red dye.

Bait money is marked bills traceable to a specific bank. The responding officer

found the Tahoe abandoned but saw a “large sum of money stained in red dye laying

on the floor board.”

      Meanwhile, other officers were pursuing a blue Ford Escape that had been

reported stolen at around the same time and from the same neighborhood as the

Tahoe. The Escape neared an apartment complex about fourteen blocks from where

the Tahoe had been abandoned. With the Escape still moving, three black men

exited the vehicle and fled on foot. The two men who had jumped out of the

passenger side of the vehicle ran toward building 12 of the complex. The driver fled

in a different direction and was the first to be apprehended.      Officers entered

building 12 to search for the remaining two suspects. Officers apprehended the

second man after they heard screaming coming from apartment 1211. At this point,

the third man still remained at large. That man pounded on the door of apartment

1217 and entered uninvited when the tenant answered. According to the tenant, the

man “looked like he had been running. He was sweaty.” Officers proceeded to clear

the apartments in building 12. In the process of removing five individuals from

apartment 1217, an officer “saw a black male stick his head out from the . . .

southwest bedroom into the hallway and look real quick and then go back . . . into

                                         3
the bedroom.” Officers handcuffed that man, identified as Defendant.

      Defendant wore a white t-shirt stained with red dye near its midsection.

Forensics found the dye on Defendant’s t-shirt to be consistent with the dye

contained in a dye-pack. A search of apartment 1217 uncovered $62,300 wrapped

in two bags in the bathroom’s toilet tank. Some of the bills were stained with red

dye. Some of the bills were bait money from Equity Bank. Inside the Chevy Tahoe

investigators found a dye-stained bag, envelopes from Equity Bank, and several

thousand dollars in dye-stained bills, including bait money and some specially

marked $2 bills the branch manager had intended to give her children. Inside the

Ford Escape investigators located numerous items of evidence linking the three men

to the robbery including items of clothing, a wool cap with holes cut in it, and two

loaded semiautomatic handguns—an Intratec AB–10 and a Bersa.

                                         II.

      Defendant first claims the evidence was insufficient to support his convictions

because no one directly identified him as a participant in the bank robbery (perhaps

because he was wearing a mask). 1 Our review of the denial of a motion for judgment

of acquittal pursuant to Fed. R. Crim. P. 29 is de novo. See United States v. Vigil,

523 F.3d 1258, 1262 (10th Cir. 2008). Viewing the evidence in the light most

favorable to the Government, we ask whether “any rational trier of fact could have


      1
        Notably, Defendant does not challenge his brandishing a firearm and felon
in possession convictions apart from his bank robbery conviction. Because
Defendant’s robbery conviction stands, so do his other two convictions.

                                         4
found the essential elements of the crime beyond a reasonable doubt. In so doing,

we do not weigh evidence or credibility; we ask only whether the Government’s

evidence, credited as true, suffices to establish the elements of the crime.” United

States v. Hutchinson, 573 F.3d 1011, 1033 (10th Cir. 2009) (internal citation

omitted). Applying this standard to the record facts, we need not belabor the point.

Suffice to say the Government presented ample evidence to support the jury’s finding

that Defendant was one of the three men who robbed Equity Bank.

         Defendant next asserts the district court erred when it applied a two-point

sentencing enhancement pursuant to U.S.S.G. § 2B3.1(b)(4)(B) to increase his base

offense level. Subsection (b)(4)(B) directs the court to increase a defendant’s base

offense level by two points “if any person was physically restrained to facilitate

the commission of the offense.” When determining the propriety of a sentence

enhancement, we review the district court’s factual findings for clear error and legal

conclusions de novo. See United States v. Miera, 539 F.3d 1232, 1234 (10th Cir.

2008).     The Government bears the burden of establishing facts to support an

enhancement by a preponderance of the evidence. See United States v. Flonnory,

630 F.3d 1280, 1285–86 (10th Cir. 2011).

         The enhancement for physical restraint is applicable when a defendant uses

force, including force by gun point, to impede others from interfering with

commission of the offense. See Miera 539 F.3d at 1234. Again, we need not tarry.

In this case, the district court properly found the evidence of the actual robbery


                                          5
supported application of the two-point enhancement because Defendant and his

accomplices threatened the branch manager and the teller with handguns to facilitate

the crime. 2

       Lastly, Defendant argues the district court denied him his right to allocution.

Because the parties agree Defendant did not object in the district court, we review

only for plain error pursuant to Fed. R. Crim P. 52(b).          See United States v.

Mendoza-Lopez, 669 F.3d 1148, 1150–51 (10th Cir. 2012).              Before imposing

sentence, the court “must . . . address the defendant personally in order to permit the

defendant to speak or present any information to mitigate the sentence.” Fed. R.

Crim. P. 32(i)(4)(A)(ii). “[A] defendant’s right of allocution is violated if a district

court indicates it is unwilling to listen to the statements or information a defendant

wishes to offer in mitigation of his sentence.” Mendoza-Lopez, 669 F.3d at 1151

(emphasis added).

       The district court announced its proposed sentence and then asked Defendant

“is there anything that you would like to say on your own behalf?” Defendant


       2
         The § 2B3.1(b)(4)(B) enhancement was appropriate regardless of which of
the three roles Defendant played in the robbery. Guideline § 1B1.3(a)(1)(A) explains
that a defendant is accountable at sentencing for “all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant.” (emphasis added). Each count of the indictment charged Defendant
under 18 U.S.C. § 2, the aiding and abetting statute, as well as the substantive
statute. Additionally, under § 1B1.3(a)(1)(B), a defendant is responsible for “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the commission of the offense of
conviction.”

                                           6
responded:

      Your Honor, . . . I’ve been convicted of these crimes and, you know, I
      apologize for . . . what’s been done that’s got us here in court today, but
      I don’t think that a high end of a sentence like that is appropriate for me
      at this age that I am and, you know, given the fact that I got three kids
      and a wife, I mean, a low end would be justifiable for me, if you ask my
      consideration about anything. I mean, I didn’t plan on getting 230 some
      months, that’s like a lot of time to a person. But I guess it’s really not
      too much I can say within the matter.

When Defendant had concluded, the court thanked him and then explained in detail

why its proposed sentence was the appropriate sentence. Defendant interjected and

the following exchange took place:

      THE DEFENDANT:             Can I ask you a question, Your Honor?
      THE COURT:                 Sure.
      THE DEFENDANT:             I mean, no one really ever said that I was
                                 exactly robbed the bank or anything, but–
      THE COURT:                 Mr. Rogers, if you are trying to tell me now–
      THE DEFENDANT;             No, I’m not saying–
      THE COURT:                 No, no, what you are trying to tell me now is
                                 that nobody said that you were one of the
                                 people in the bank. Well, the fact is they did
                                 say that. There was testimony at your trial
                                 about that, and a jury found even as an aider
                                 and abetter that you are every bit as
                                 responsible as a principal if you weren’t a
                                 principal. And let me tell you something
                                 else, Mr. Rogers. If you try to excuse or
                                 diminish in any way, again, in hearing your
                                 involvement, your role in this, I’m going to
                                 look for a way to enhance your sentence even
                                 further. Do you understand that?
      THE DEFENDANT:             Yes sir.
      THE COURT:                 All right. Were you about to tell me that you
                                 were not as important a part of this as the
                                 other people? Is that what you want to tell
                                 me?

                                          7
      THE DEFENDANT:            No, I was just trying to say that I didn’t get a
                                straight testimony of anybody pointing me
                                out that said I did anything, that’s all.
      THE COURT:                The jury found beyond a reasonable doubt
                                that you were a bank robber.
      THE DEFENDANT:            I understand that.
      THE COURT:                And that’s all we need to know. That’s all
                                we need to know.

      Defendant says the foregoing exchange impeded his allocution. We think not.

First, after apparently completing his allocution, Defendant decided he wanted to

point out to the district court that no direct evidence identified him as one of the

three robbers. And he did so. As the foregoing exchange indicates, the district court

eventually heard Defendant out. Second, given the overwhelming evidence of his

guilt, Defendant’s roundabout attempt to undermine the jury’s verdict based on the

fact he wore a mask during the robbery to escape eyewitness identification is hardly

mitigating evidence appropriate for allocution. Third, Defendant fails to provide us

any objective basis to suggest the district court would have granted a lower sentence

absent its obvious frustration with Defendant’s point. See Mendoza-Lopez, 669 F.3d

at 1154. At the very least, a miscarriage of justice amounting to plain error cannot

be said to have occurred.

      AFFIRMED.

                                       Entered for the Court,



                                       Bobby R. Baldock
                                       United States Circuit Judge

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