     Case: 10-50725     Document: 00511604728         Page: 1     Date Filed: 09/16/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 16, 2011
                                     No. 10-50725
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RONNIE KEITH KELLEY,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:10-CR-69-2


Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Ronnie Keith Kelley appeals his convictions for two counts of aiding and
abetting the use, carrying, or possession of a firearm during a bank robbery and
one count of conspiracy to commit bank robbery. Kelley argues that the evidence
was insufficient to establish that he aided and abetted the use of a firearm. He
also argues that there was no evidence he conspired regarding the use, carrying,
or possession of a firearm.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 10-50725

        Because Kelley failed to move for a judgment of acquittal, his sufficiency
challenge is reviewed only for a manifest miscarriage of justice. See United
States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). Such a miscarriage of justice
occurs when the record is “devoid of evidence of guilt or the evidence [is] so
tenuous that a conviction is shocking.” Id.
        A conviction for aiding and abetting requires proof “(1) that the defendant
associated with the criminal venture, (2) participated in the venture, and (3)
sought by action to make the venture succeed.” United States v. Lopez-Urbina,
434 F.3d 750, 757 (5th Cir. 2005). For the Government to establish that Kelley
aided and abetted the use of the firearm, the prosecution had to prove that “the
defendant ‘acted with the knowledge or specific intent of advancing the use of
the firearm.’” Id. at 758 (quoting United States v. Sorrells, 145 F.3d 744, 753
(5th Cir. 1998) ). The evidence must include proof that the “defendant performed
some affirmative act relating to the firearm.” Id. (quoting Sorrells, 145 F.3d at
754).
        There was evidence that Kelley knew his co-defendant, Benjamin Potts,
possessed a firearm during the robberies. Witnesses from each robbery testified
that Potts’s firearm was visible.       Additionally, Potts threatened to shoot
witnesses during the robbery. There was also evidence that Kelley acted with
the intent to advance the use of the firearm. He entered the banks with Potts
disguised as an armored car guard. Kelley would remain at the door and keep
control of the lobby while Potts robbed the bank vaults. Testimony from various
witnesses established that Kelley ordered witnesses to sit on the floor. Kelley
kept his hands in his pockets or at his waist throughout the robbery and was
believed to have a gun. He threatened to harm witnesses if they did not comply
with his orders and threatened to shoot one bank teller if she did not remain in
the bank vault with Potts. Kelley also assisted Potts in obtaining keys to a bank
vault and reaffirmed Potts’s threats. The evidence is sufficient to establish that
he acted with the knowledge and intent of advancing the use of the firearm.

                                         2
   Case: 10-50725   Document: 00511604728      Page: 3   Date Filed: 09/16/2011

                                  No. 10-50725

      Kelley’s challenge to his conspiracy conviction fails because it is based on
the assertion that the evidence was insufficient to establish a conspiracy to use,
carry, or possess the firearm. The indictment reflects that Kelley was indicted
for conspiracy to commit bank robbery. He was not indicted for conspiracy to
use, carry, or possess a firearm during the bank robbery. Therefore, his
argument fails.
      The record is not devoid of evidence that Kelley aided and abetted the use,
carrying, or possession of a firearm during bank robberies. Kelley’s convictions
do not constitute a manifest miscarriage of justice. See Avants, 367 F.3d at 449.
      Accordingly, the judgment of the district court is AFFIRMED.




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