                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4869



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL PHILLIP BOURQUE,

                                              Defendant - Appellant.



                            No. 05-4267


UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

MICHAEL PHILLIP BOURQUE,

                                              Defendant - Appellant.



Appeals from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, District Judge.
(CR-02-336)


Submitted:   October 31, 2005             Decided:   December 9, 2005


Before LUTTIG, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.


C. Gordon McBride, Hartsville, South Carolina, for Appellant.
Jonathan S. Gasser, United States Attorney, A. Bradley Parham,
Assistant United States Attorney, District of South Carolina,
Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




                             - 2 -
PER CURIAM:

           Michael Phillip Bourque was convicted by a jury of aiding

and abetting armed bank robbery, 18 U.S.C. §§ 2113(a), 2113(d), 2

(2000) (Count One), aiding and abetting the use of a firearm in a

crime of violence, 18 U.S.C.A. §§ 924(c), 2 (West 2000 & Supp.

2005) (Count Two), and possession of a firearm by a convicted

felon, 18 U.S.C.A. §§ 922(g)(1), 924(e) (West 2000 & Supp. 2005)

(Count Three).      The court sentenced Bourque as an armed career

criminal, 18 U.S.C.A. § 924(e); U.S. Sentencing Guidelines Manual

§ 4B1.4 (2002), and departed upward from the guideline range under

USSG § 4A1.3.    The court imposed the statutory maximum sentence of

300 months on Count One, a concurrent sentence of 447 months on

Count Three, and a consecutive sentence of eighty-four months

imprisonment on Count Two, to be followed by a five-year term of

supervised    release.      The    court       also    ordered   Bourque    to   pay

restitution   in    the   amount    of    $349.50.        Bourque    appeals     his

conviction and sentence.          We grant his motions for leave to file

pro se supplemental briefs and affirm the conviction and sentence.

We dismiss the appeal of the district court’s decision not to

depart downward.

           At Bourque’s trial, the government’s evidence showed

that, on March 14, 2002, Horry County, South Carolina, Police

Officer   Anthony   Mueller,      heard    a    BOLO    (“Be   on   the   Lookout”)

dispatch for a white male in a black pickup truck believed to be


                                     - 3 -
involved in an armed bank robbery.           As he drove toward the bank,

Mueller met a burgundy-colored truck driven by Bourque.                   The

passenger in the truck was Craig Crissman, who had robbed the bank

a few minutes earlier, masked and armed with a handgun, while

Bourque   waited   behind    the   wheel    of   Crissman’s    pickup   truck.

Mueller stopped the truck but, because it appeared to be the wrong

color, he immediately told Bourque and Crissman they could go.

Mueller then received another dispatch stating that the getaway

truck had big tires, as Crissman’s truck did.                 Mueller quickly

stopped the truck a second time, removed Bourque and Crissman from

the truck, and handcuffed them.            After backup officers arrived,

Mueller checked the vehicle for weapons and saw two firearms inside

the cab of the truck.       The truck was later searched pursuant to a

search warrant, and the following items were seized:               two loaded

firearms, a ski mask, a pillowcase containing the proceeds from the

bank robbery including bait money, a cell phone, and the jacket

worn by the bank robber.       While Bourque was being transported to

the detention center, Mueller thanked Bourque for not trying to

shoot him.    Bourque responded that he had been about to shoot

Mueller when Crissman talked him out of it.          Crissman confessed to

robbing the bank, and said that Bourque pressured him into doing it

by threatening to have his family harmed if he did not.

           Before the trial, Bourque moved to suppress all evidence

seized from the truck and the statement he made to Mueller.               The


                                    - 4 -
district court denied the motion to suppress, having determined,

first,   that   Officer   Mueller’s   information   from   the   BOLO   was

sufficient to support a reasonable suspicion that the truck was the

getaway vehicle, and justified the second investigative stop of

the truck under Terry v. Ohio, 392 U.S. 1 (1968).          The court also

held that a limited protective search of the cab of the truck was

permissible under Michigan v. Long, 463 U.S. 1032 (1983).1

           At sentencing, the district court grouped Counts One and

Three together and determined that a combined adjusted offense

level of 24 applied, which was increased to 34 because Bourque

qualified for sentencing as an armed career criminal.            Although

Bourque had six criminal history points, his armed career criminal

status placed him in criminal history category VI.         His guideline

range was 262-327 months. The district court departed upward based

on the serious nature of his prior criminal conduct and the

likelihood that he would commit future crimes, and imposed a

guideline sentence of 447 months imprisonment, with a consecutive

seven-year sentence for the § 924(c) conviction.




     1
      The court further held that Bourque’s statement to Mueller,
given without a Miranda warning, was admissible because Mueller’s
statement was not intended to elicit a response from Bourque, and
that the search warrant for the truck had not included any
intentional misstatements although the facts in the affidavit
varied somewhat from Mueller’s testimony; the court noted that the
location of the firearms in the truck was not material to the
magistrate judge’s finding of probable cause.

                                 - 5 -
               On appeal, Bourque first challenges the district court’s

denial of his motion to suppress.                       Bourque argues that, when

Officer Mueller stopped the truck for the second time, there was

insufficient         evidence     to    give     an     objective        police    officer

reasonable suspicion that the occupants were involved in criminal

activity.           He also contends that Mueller had no basis for a

warrantless search of the truck, i.e., opening the door of the

truck to inspect it, because the suspects had been handcuffed by

then and were being detained some distance from the truck.

               We     review    the     district        court’s    factual        findings

underlying a motion to suppress ruling for clear error, and the

district court’s legal determinations de novo.                      Ornelas v. United

States, 517 U.S. 690, 699 (1996); United States v. Bush, 404 F.3d

263, 275 (4th Cir.), cert. denied, 126 S. Ct. 289 (2005).                           When a

suppression motion has been denied, this court reviews the evidence

in the light most favorable to the government.                          United States v.

Grossman, 400 F.3d 212, 216 (4th Cir. 2005). “The Fourth Amendment

protects       ‘the     people’        against    ‘unreasonable           searches     and

seizures.’”         United States v. Hylton, 349 F.3d 781, 785 (4th Cir.

2003) (quoting U.S. Const. amend. IV), cert. denied, 541 U.S. 1065

(2004).

               An officer may, consistent with the Fourth Amendment,

conduct    a    brief,     investigatory         stop    when     the    officer    has   a

reasonable, articulable suspicion that criminal activity is afoot.”


                                          - 6 -
Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry, 392 U.S. at

30.   To conduct a Terry stop, there must be “at least a minimal

level of objective justification for making the stop.”         Wardlow,

528 U.S. at 123; see also United States v. Hensley, 469 U.S. 221,

232 (1985).   Reasonable suspicion requires more than a hunch but

less than probable cause.     Id. at 123-24.        In assessing police

conduct in a Terry stop, courts must look to the totality of the

circumstances.   United States v. Sokolow, 490 U.S. 1, 8 (1989).

          Officer   Mueller   made   the   second    Terry   stop   after

receiving a report of an armed bank robbery in which the robber was

a white male and the getaway vehicle was believed to be a black

pickup truck with oversized tires.      Within a few minutes after he

received the alert, Mueller encountered a dark-colored pickup truck

with large tires coming from the direction of the bank and occupied

by two white males.   These facts provided Officer Mueller with a

reasonable and articulable suspicion that the occupants of the

truck were engaged in criminal activity, and justified his decision

to stop the truck, remove Bourque and Crissman from the truck, and

inspect the truck for other suspects or weapons.        See Maryland v.

Wilson, 519 U.S. 408, 415 (1997) (no Fourth Amendment violation in

requiring defendant to exit car to be frisked); Michigan v. Long,

463 U.S. 1032, 1049 (1983) (no Fourth Amendment violation for

searching car’s passenger compartment where a gun may have been

secreted); United States v. Holmes, 376 F.3d 270, 280 (4th Cir.


                                - 7 -
2004), (holding that Long authorizes protective search of vehicle

for weapons during Terry stop, even when suspect is outside vehicle

and effectively under police control), cert. denied, 125 S. Ct. 633

(2004).

             Bourque       argues    that    Mueller’s       testimony        at   the

suppression hearing was not clear as to whether he could see the

guns from outside the truck or only after he opened the driver’s

side door.     Mueller first testified that he was not sure whether

the   door   was    open    when    he   looked   in   the   truck.      On    cross-

examination, he testified that the guns were plainly visible, but

only after the door was opened.             Because Mueller had authority to

search the truck for weapons under Long and Holmes, whether he

could see the firearms before opening the truck door was not

significant.       Because Mueller suspected Bourque and Crissman of

involvement in an armed robbery, and no weapon was discovered on

either suspect, a search of the truck for weapons was clearly

permissible.       Therefore, the district court did not err in denying

the motion to suppress the evidence seized from the truck.

             Bourque next argues that the evidence was insufficient to

establish that he was present at the bank during the robbery.

Bourque contends that the government’s case depended entirely on

Crissman’s claim that he committed the robbery under duress and

that Crissman’s testimony on this point was not credible.                          We

review the district court’s decision to deny a Rule 29 motion de


                                         - 8 -
novo.     United States v. Lentz, 383 F.3d 191, 199 (4th Cir. 2004),

cert. denied, 125 S. Ct. 1828 (2005).           Where, as here, the motion

was based on insufficient evidence, “[t]he 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).     This   court   “ha[s]   defined

‘substantial evidence,’ in the context of a criminal action, as

that evidence which ‘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. Newsome, 322

F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc)).

            Bourque and Crissman were found together in the vehicle

seen leaving the bank a short time after the robbery, and the

robbery proceeds including bait money were discovered in the

vehicle.     The jury found Crissman’s testimony that Bourque aided

and abetted the robbery credible.            See United States v. Sun, 278

F.3d 302, 313 (4th Cir. 2002) (“[W]e do not review the credibility

of the witnesses and assume the jury resolved all contradictions in

the testimony in favor of the government.”).                  Therefore, this

evidence was sufficient to sustain Bourque’s conviction for aiding

and abetting the bank robbery and the related firearms counts.2


     2
      In his pro se supplemental brief, Bourque maintains that the
government failed to prove that the bank was a federally-insured
financial institution at the time of the robbery. We are satisfied

                                     - 9 -
            Although Bourque acknowledges that we lack authority to

review the district court’s decision not to depart because the

court    understood    its        authority    to   depart    and    exercised     its

discretion not to depart, see United States v. Wood, 378 F.3d 342,

351 n.8 (4th Cir. 2004); United States v. Bayerle, 898 F.2d 28, 30-

31 (4th Cir. 1990), he seeks review of the sentencing court’s

decision.      We dismiss this portion of the appeal for lack of

jurisdiction.

            Bourque next contends that the district court abused its

discretion in departing upward because the sentence imposed was

disproportionate       to     the   crime     and   thus    violated      the   Eighth

Amendment prohibition on cruel and unusual punishment and because

Crissman       received       a     lesser      sentence.            We    disagree.

“Proportionality review is not available for any sentence less than

life imprisonment without the possibility of parole.”                           United

States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001).                         Because

Bourque has not been sentenced to life imprisonment, we will not

review   his    sentence      for    proportionality.        And    the    fact   that

Crissman    received      a   lesser    sentence     does    not    make   Bourque’s

sentence disproportionate to the crime, because “district courts

are not obliged to make comparisons of the relative harshness of

sentences imposed against various defendants.”                     United States v.



that the testimony of the bank vice president established that
fact.

                                       - 10 -
Foutz, 865 F.2d 617, 622 (4th Cir. 1989).           But even if we would

examine the proportionality of Bourque’s sentence, it is not

disproportionate     in   light   of   his   recidivism.     See    Ewing   v.

California, 538 U.S. 11, 29-30 (2003) (sentence of twenty-five

years to life for recidivist did not violate Eighth Amendment).

          Bourque also argues the district court violated his Sixth

Amendment rights when sentencing him.         In United States v. Booker,

the Supreme Court held that the mandatory manner in which the

federal sentencing guidelines required courts to impose sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.        125 S. Ct. 738, 746,

750 (2005).

          Bourque was sentenced before the Supreme Court decided

Booker or its predecessor, Blakely v. Washington, 542 U.S. 296

(2004).   Bourque does not allege that the district court erred in

applying the guidelines as mandatory, but in his supplemental brief

he does allege that the district court violated his Sixth Amendment

rights by sentencing him to a term of imprisonment greater than he

would have received under the guidelines based on facts found by

the jury or admitted by him. Bourque’s Sixth Amendment rights were

not violated, however, because the only facts the district court

considered    when   enhancing    Bourque’s    sentence    were    his   prior

convictions, and the Sixth Amendment does not demand that prior

convictions be found by the jury or admitted by the defendant


                                   - 11 -
before they are used as the basis for enhancing a sentence.           United

States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005).             Because the

district court only referenced Bourque’s prior convictions for

facts justifying a sentence greater than the guideline range, we

conclude that no Sixth Amendment error occurred.

           Last,   Bourque    contends    that   the    loss    of   certain

photographs of the truck introduced into evidence by the government

at trial has deprived him of the opportunity for a full review of

the propriety of the warrantless search of the truck.            He alleges

that a meaningful review of his conviction is not possible without

the photographs and that reversal of his conviction or a new trial

is required.

           Under Fed. R. App. P. 10(a)(1), the record on appeal

includes   original   exhibits   filed    in   the   district   court.     A

defendant who seeks a new trial because the record is incomplete

must show that his appeal is prejudiced by the absence of the

missing portions of the record.     United States v. Brown, 202 F.3d

691, 696 (4th Cir. 2000).      If the record can be reconstructed by

the district court or if the district court determines that the

missing portions of the record are not relevant to issues the

defendant wishes to raise on appeal, a new trial will not be

granted.   See United States v. Novaton, 271 F.3d 968, 993 (11th

Cir. 2001).    We previously remanded this case for an evidentiary

hearing on this issue.       The district court determined on remand


                                 - 12 -
that substitute photographs provided by the government from the

same series of photographs were adequate replacements for the

missing photographs.          Bourque does not seriously challenge this

finding   on     appeal.      Therefore,     we   conclude   that    he   has   not

demonstrated prejudice and that the loss of the trial photographs

does not warrant either reversal of his conviction or a new trial.3

               We therefore affirm the conviction and sentence imposed

by the district court.        We dispense with oral argument because the

facts    and    legal   contentions    are     adequately    presented     in   the

materials      before   the   court    and   argument    would      not   aid   the

decisional process.

                                                             AFFIRMED IN PART;
                                                             DISMISSED IN PART




     3
      We have considered the remaining issues raised in the pro se
supplemental briefs and find them to be without merit.

                                      - 13 -
