                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4882


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

BERNALDINO MUNOZ-MENDEZ, a/k/a Fernando,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00408-RJC)


Submitted:    February 2, 2009              Decided:   March 13, 2009


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


Reita P. Pendry, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Bernaldino Munoz-Mendez appeals his conviction after a

jury trial of attempted bank robbery, in violation of 18 U.S.C.

§ 2113(a)      (2006);     possessing         a    firearm        in    and     affecting

interstate     commerce,      in   violation           of    18   U.S.C.      § 922(g)(5)

(2006); possessing a firearm during and in relation to a crime

of    violence,     in    violation      of       18    U.S.C.     § 924(c)         (2006);

attempting to damage or destroy a building used in and affecting

interstate commerce, in violation of 18 U.S.C. § 844(i) (2006);

and   making    a   destructive     device,        in       violation    of    26   U.S.C.

§§ 5822, 5861(f)         and 5871 (2006).

            On appeal, Munoz-Mendez argues that the evidence was

insufficient to convict him of the two attempt offenses, and

therefore, the district court erred in denying his Fed. R. Crim.

P. 29 motion for judgment of acquittal on those two counts.

Specifically,       Munoz-Mendez    claims        the       evidence    showed      nothing

more than mere preparation and did not constitute a substantial

step toward the completion of the offenses.                        Also, because the

evidence    was     insufficient    to    convict           him   of    attempted     bank

robbery, Munoz-Mendez argues that the predicate offense for the

§ 924(c) offense is missing, and therefore, the district court

erred in denying his Rule 29 motion on that count.                                  Munoz-

Mendez’s claims are without merit.



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               This court reviews a district court’s decision to deny

a Rule 29 motion de novo.                    United States v. Midgett, 488 F.3d

288, 297 (4th Cir. 2007).                Where, as here, the motion is based

on a claim of insufficient evidence, “the verdict of a jury must

be sustained if there is substantial evidence, taking the view

most favorable to the Government, to support it.”                               Glasser v.

United States, 315 U.S. 60, 80 (1942); Midgett, 488 F.3d at 297.

“[S]ubstantial evidence is evidence that a reasonable finder of

fact    could    accept      as     adequate        and    sufficient     to    support   a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United States v. Delfino, 510 F.3d 468, 471 (4th Cir. 2007)

(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996)    (en    banc)).         This     court      “can   reverse   a    conviction      on

insufficiency         grounds     only       when   the    prosecution’s       failure    is

clear.”        United States v. Moye, 454 F.3d 390, 394 (4th Cir.

2006)(en banc).

               “An attempt to commit a crime, which is recognized as

a     crime    distinct      from      the    crime       intended   by   the     attempt,

punishes conduct that puts in motion events that would, from the

defendant’s point of view, result in the commission of a crime

but for some intervening circumstance.”                      United States v. Pratt,

351    F.3d    131,    135   (4th      Cir.     2003).       In   order    to    prove    an

attempt, the Government must establish that:



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       (1) the defendant had the requisite intent to commit a
       crime; (2) the defendant undertook a direct act in a
       course of conduct planned to culminate in his
       commission of the crime; (3) the act was substantial,
       in   that  it   was  strongly  corroborative   of  the
       defendant’s criminal purpose; and (4) the act fell
       short of the commission of the intended crime due to
       intervening circumstances.

Id.

               Mere      preparation        is       insufficient       to   establish     an

attempt.       United States v. Sutton, 961 F.2d 476, 478 (4th Cir.

1992).        However, the defendant need not commit the last act

necessary before the actual commission of the substantive crime

to    be    guilty      of   an    attempt.          Id.      Whether    a   defendant   has

engaged       in    a    substantial       act       beyond     mere    preparation   is   a

factual question.               Pratt, 351 F.3d at 136.                Facts that strongly

corroborate a defendant’s criminal purpose and may constitute a

substantial         step       toward    commission        of   the     substantive   crime

include:      (1)       lying     in   wait,   searching        for,    or   following   the

contemplated victim; (2) reconnoitering the place contemplated

for the commission of the crime; (3) possession of materials to

be employed in the commission of a crime; and (4) possession or

fabrication of materials to be used in the commission of the

crime, at or near the place contemplated for its commission.

Pratt, 351 F.3d at 135.

               The evidence presented at trial, viewed in the light

most       favorable      to    the     Government,        overwhelmingly      establishes


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that Munoz-Mendez was guilty of both attempt offenses.                                    Munoz-

Mendez observed the targeted Bank of America for approximately

one year while working construction jobs near the bank.                                   Munoz-

Mendez     took    note         of     the        number     of     guards,       cameras,     and

employees.       Also, in the days leading up to the planned robbery,

Munoz-Mendez reconnoitered the Bank of America multiple times.

Munoz-Mendez      planned            all    the     major     details      of     the   robbery,

including how the money would be split among the participants,

the equipment needed, and the use of a Molotov cocktail as a

diversion.         Munoz-Mendez              assigned        responsibilities           for     the

robbery to a confidential source and to an undercover agent.

Munoz-Mendez      drew      a    schematic             of   the   bank    and     planned      what

actions each member would take during the robbery and escape.

Munoz-Mendez      attempted           to     recruit        other    participants         in    the

robbery.        Also, Munoz-Mendez repeatedly affirmed his intent to

commit the robbery.                  Finally, Munoz-Mendez detailed the items

needed to make the Molotov cocktails, and then assembled those

materials into two bombs the day before the planned robbery.                                     We

have   reviewed       the       record       and       determine     that      this     evidence,

viewed     in     the     light            most     favorable        to     the     Government,

establishes Munoz-Mendez was guilty of both attempt offenses.

Therefore,      the     district           court    did     not   err     in    denying   Munoz-

Mendez’s motion for acquittal.



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           Accordingly,      because   the   evidence    was   sufficient     to

convict him of attempted bank robbery, the predicate offense for

the § 924(c) conviction existed, and the district court did not

err in denying Munoz-Mendez’s motion on the § 924(c) count.                   We

note, however, that the written judgment contains a clerical

error in that, on the first page, the judgment indicates that

Munoz-Mendez pleaded guilty to counts 1-5, rather than that he

was found guilty after a plea of not guilty.                   Therefore, we

affirm   the    judgment    of   the   district   court    but     remand    for

correction     of   the   written   judgment.     We    dispense    with    oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and oral argument

would not aid the decisional process.

                                                       AFFIRMED AND REMANDED




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