                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                            FILED
                         _________________________ U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                                                         NOV 3, 2008
                                No. 07-13738
                                                      THOMAS K. KAHN
                         _________________________
                                                           CLERK

                      D.C. Docket No. 06-00081-CR-01-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

     versus

ALVIN L. PRICE,
DONALD M. REYNOLDS,
                                                          Defendants-Appellants.

                         _________________________

              Appeals from the United States District Court for the
                          Southern District of Georgia
                         _________________________

                              (November 3, 2008)

Before DUBINA, HULL and FAY, Circuit Judges.

FAY, Circuit Judge:
       Defendants Reynolds and Price appeal their convictions for armed bank

robbery in violation of 18 U.S.C. § 2113(a) and (d) and discharge of a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Reynolds

also appeals his conviction for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). Reynolds argues that he should not have been

limited in his presentation of evidence at the suppression hearing and the district

court erred by finding the identification procedure admissible. Reynolds also

argues that the district court erred by allowing testimony at trial related to lost or

destroyed evidence, permitting testimony at trial from the Rule 11 hearing, and

imposing an upward departure at sentencing. Price contends that the

government’s use of testimony from the Rule 11 hearing creates a reversible error.

For the reasons set out below, we affirm Reynolds’ convictions and the district

court’s upward departure at sentencing and we vacate Price’s convictions on all

counts. Accordingly, we reverse the judgment entered against Price and remand

this matter to the district court for a new trial.

                                 I. BACKGROUND

       On April 21, 2006, the Queensboro National Bank and Trust in Hephazibah,

Georgia was robbed by a black male, carrying a shotgun and wearing a white jump

suit and a long, black wig. The robber fired the shotgun three times: into the

                                             2
ceiling as he entered the bank, demanding money from the teller; into the office of

a bank employee; and at a customer service representative. Fortunately, no one

was killed. However, a bank employee, shot at inside her cubicle, suffered a

wound to her left arm.

      The robber left the bank with 6650 dollars in cash. He got in a “getaway”

car and drove away. Five to ten minutes later a 911 caller provided a possible

description of the “getaway” car. Deputy An, a Richmond County Sheriff’s

Deputy, saw a nearby car stopped at a stop light that fit the description. Deputy

An pulled into a “T-Bone” position with that car. The back seat passenger in the

car popped up and fired a shotgun at the Deputy. Deputy An, not hit by the shot,

returned fire. The driver then slowly drove the car into a nearby convenience store

parking lot at an almost idle speed. The shooter exited the vehicle and ran toward

a wooded area behind the convenience store. Price, the driver, was arrested at the

convenience store by Deputy Brian Richey. County agents found shotgun shells;

white coveralls, a long black wig, a knit cap, two black gloves, a wallet belonging

to a bank employee, the bank teller’s purse, and a black bag containing 6650

dollars in cash in the back seat of the car. After a ten to fifteen minute chase,

Deputy An and two other officers found Reynolds in a nearby neighborhood

hiding in a bushy area in front of a residence and placed him under arrest.

                                           3
      Deputy An then brought Reynolds to the bank for a show-up identification.

The bank employees were informed by an officer that the man responsible for the

robbery had been apprehended and then watched as Deputy An removed a

handcuffed Reynolds from the backseat of a police vehicle. Reynolds was turned

to face the employees and told to show both sides of his face, open his mouth, and

hold up his head. The bank employees positively identified Reynolds as the

robber.

      Defendants Reynolds and Price were indicted on one count each of armed

robbery in violation of 18 U.S.C. § 2113(a) and (d), and one count each of

discharge of a firearm during a crime of violence in violation of 18 U.S.C. §

924(c)(1)(A)(iii). Reynolds was also indicted on one count of possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On March 6,

2007 Price and Reynolds were tried before a jury in the Southern District of

Georgia and convicted on all counts. On July 31, 2007 Price was sentenced to 155

months for armed robbery and 120 months for possession of a firearm by a

convicted felon, to run consecutively for a total sentence of 275 months in

confinement. Reynolds was sentenced to 300 months with respect to Count One,

120 months with respect to Count Three, to run concurrently with Count One, and

120 months with respect to Count Two, to be served consecutively.

                                         4
                          II. STANDARD OF REVIEW

      There are four issues on appeal before us:

A.    Whether the court erred by finding the identification procedure admissible
      and whether the magistrate judge should have allowed Reynolds to call
      witnesses at the suppression hearing.

B.    Whether the court erred by admitting testimony about evidence that had not
      been preserved or otherwise located for trial.

C.    Whether the court erred by admitting testimony at trial from Price’s Rule 11
      hearing.

D.    Whether Reynolds’ sentence was reasonable.

      A district court’s determination that an out of court identification procedure

was not impermissibly suggestive is subject to clear error review. United States v.

Diaz, 248 F.3d 1065, 1103 (11th Cir. 2001). If we find the district court

committed an error, we review that error to determine if it was harmless. Marsden

v. Moore, 847 F.2d 1536, 1546 (11th Cir. 1988) (“Unreliable identifications

resulting from unduly suggestive photographic displays are subject to harmless

error analysis.”).

      We review evidentiary rulings of the district court for abuse of discretion.

United States v. Novaton, 271 F.3d 968, 1005 (11th Cir. 2001). Evidentiary errors

are only grounds for reversal if “there is a reasonable likelihood that they affected

the Defendant’s substantial rights; where an error had no substantial influence on

                                          5
the outcome, and sufficient evidence uninfected by error supports the verdict,

reversal is not warranted.” United States v. Drury, 396 F.3d 1303, 1315 (11th Cir.

2005) (quoting United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990));

see also Kotteakos. v. United States, 328 U.S. 750, 757 (1946) (quoting Berger v.

United States, 295 U.S. 78, 82 (1935) (“The true inquiry . . . is not whether there

has been a variance of proof, but whether there has been such a variance as to

affect the substantial rights of the accused.”).

      We review sentences imposed by the district court for reasonableness.

United States v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006); see also

Kimbrough v. United States, 128 S.Ct. 558, 574 (2007).

                                  III. ANALYSIS

A. Suppression Hearing

      Reynolds appeals the magistrate judge’s decision to bar him from

introducing evidence at his suppression hearing and the district court’s subsequent

decision to allow pretrial and in-court identification testimony at trial. Before

trial, Reynolds challenged the circumstances surrounding his arrest and the

procedures used by the arresting officers during the show up. Specifically, he

moved to suppress all pretrial and in-court identification testimony due to its

suggestive nature. A hearing on Reynolds’ Motion to Suppress was held before

                                           6
U.S. Magistrate Judge Barfield on December 20, 2006. At the hearing, Judge

Barfield denied Reynolds’ request to call three bank employees to testify about the

suggestive nature of the identification procedure. Judge Barfield then

recommended that Reynolds’ Motion be denied and the district court subsequently

adopted Judge Barfield’s recommendation. Reynolds appeals the decision,

asserting that he was denied due process because he was not given an adequate

opportunity to prove the suggestive nature of the show up at the hearing and the

show up created a substantial risk of misidentification at trial.

      Show ups “allow identification before the suspect has altered his appearance

and while the witness’ memory is fresh and permit the quick release of innocent

persons.” Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987). But, a show up

can be unduly suggestive if “the police aggravate the suggestiveness of the show

up.” Id. In “assessing the constitutionality of a trial court’s decision to admit an

out-of-court identification . . . [f]irst, we must determine whether the original

identification procedure was unduly suggestive. If we conclude that it was

suggestive, we then must consider whether, under the totality of the circumstances,

the identification was nonetheless reliable.” Diaz, 248 F.3d at 1102.

Identification procedures that are found to be unduly suggestive and unreliable are

then subject to harmless error review. Marsden, 847 F.2d at 1546 (“Unreliable

                                           7
identification resulting from unduly suggestive photographic displays are subject

to harmless error analysis.”).

      To prove the identification procedure was unduly suggestive, Reynolds tried

to call three bank employees as witnesses. Reynolds’ counsel told the court the

bank employees would testify that (1) Reynolds was forced to hold his head up

and open his mouth to show his teeth to the bank employees; and (2) the police

told the bank employees they were bringing someone over who they wanted the

employees to look at and try to identify. The magistrate judge considered the facts

presented by counsel and concluded “even assuming that the bank employees had

testified to the information outlined by defense counsel at the hearing, this would

not change the conclusion that there was nothing unduly suggestive about the

manner in which the show-up was conducted.” (District Ct. Docket Entry # 98,

Rep. and Recommendation, at 14.) The magistrate judge announced he accepted

defense counsel’s proffer as given and consequently found it unnecessary to call

the bank employees to testify at the suppression hearing. The magistrate judge

explained that Reynolds was told to lift his head and open his mouth because the

employees had noticed “the distinctive nature” of the robber’s teeth. (Id. at 14.)

The magistrate judge also stated that the officer’s remark that the police were

bringing over someone to be identified was similarly not suggestive, it was just an

                                          8
explanation of what was about to occur. The magistrate judge subsequently found

the show up was not overly suggestive.

       At a suppression hearing, the preferred course is to give great latitude to a

party presenting evidence in support of a Motion to Suppress. This is consistent

with United States v. Williams where we recognized that a defendant should be

given wide latitude to develop the factual circumstances about the suggestiveness

of an identification procedure. 592 F.2d 1277, 1281 (5th Cir. 1979).1 In this

abundance of caution, instead of considering the evidence that Reynolds proffered

these witnesses would testify to, Reynolds should have been able to enter these

witnesses’ testimony into the record.

       Nevertheless, this error had no substantial influence on the outcome of the

trial. The danger of misidentification by eyewitnesses in pre-trial identification

procedures may be “substantially lessened by a course of cross-examination at trial

which exposes to the jury the method’s potential for error.” Simmons v. United

States, 390 U.S. 377, 384 (1968). Here, Deputy An and the bank employees were

cross examined by Reynolds about the show up and identification process.

Reynolds was able to expose any potential errors in the identification procedure to



       1
        Under Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
are bound by cases decided by the former Fifth Circuit before October 1, 1981.

                                              9
the jury. Reynolds further presented evidence that the robbery lasted only fifty-

five seconds (Tr. at 153); that Reynolds was the only person presented to the bank

employees for identification (id. at 154); that one of the witnesses could not

positively identify Reynolds as the robber, provide an accurate description of the

robber or recall what he was wearing an hour after the robbery (id. at 95 and 98);

and that the teller who identified Reynolds avoided looking at the robber during

the robbery and did not even recall seeing a gun (id. at 150-51). The jury heard

the testimony of all of the witnesses, the cross examination of those witnesses, and

the facts Reynolds placed into the record before finding Reynolds guilty. Thus,

we find the magistrate judge’s failure to allow the testimony of the bank

employees at the suppression hearing was harmless error.

      Viewing this record in its entirety, there is simply no risk that Reynolds was

misidentified. This is so because there was an abundance of incriminating

evidence identifying Reynolds as the robber, independent of the show up. For

example, there was a video tape of the robbery and it was clear from the video that

Reynolds was wearing the same clothing as the robber. Thus, the bank employees

were not relied upon to remember those details about the robber. Second, the bank

employees informed the police about the distinctive nature of the robber’s teeth

before the show up identification and the robber’s teeth were caught on camera.

                                         10
Reynolds’ teeth matched the video and the employees’ description. Third,

Reynolds was identified by Price, the driver of the “getaway” car, as the passenger

in that “getaway” car. Fourth, Price testified that after hearing a loud noise he saw

Reynolds in the backseat of the “getaway” car holding a shotgun. Fifth, Reynolds

was identified by Deputy An as the person who shot at him. Sixth, the “getaway”

car contained the white overalls, long black wig, knit cap, and black gloves worn

by the robber. The car also contained a wallet and a purse belonging to bank

employees and a black bag filled with the same amount of money that was stolen

from the bank. Thus, no substantial risk of misidentification existed because there

was overwhelming evidence against Reynolds to support the jury’s guilty verdict.

Assuming the admission of the show up was error, which we do not hold, it was

harmless.

B. Disruption of Evidence

      Reynolds appeals the district court’s decision to permit testimony related to

evidence unavailable at trial. The government introduced testimony about the

“getaway” car, which was destroyed prior to trial, after Defendants filed a Motion

to Preserve Evidence. Further, the government called two bank employees as

witnesses whose audiotape statements from the day of the robbery disappeared

prior to trial. Reynolds objected to the use of this testimony. The court heard

                                         11
counsels’ arguments, and then ruled the testimony admissible. Reynolds appeals

the decision, asserting he was denied his right to due process.

      Lost evidence does not automatically deny a defendant his or her right to

due process. The lost evidence “must both possess an exculpatory value that was

apparent before the evidence was destroyed, and be of such a nature that the

defendant would be unable to obtain comparable evidence by other reasonably

available means.” United States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir.

2006) (quoting California v. Trombetta, 467 U.S. 479, 489 (1984)). Further, the

loss must be due to the government’s bad faith. Id.

      Here, the district court held there was no denial of due process because the

evidence was not potentially exculpatory, it was brought before the jury by other

means, and there was no showing of bad faith by the government. We agree.

      Before destroying the car, the officers seized what they believed to be all the

relevant evidence from the car: the stolen money, shotgun shells, the white

jumpsuit, the wig, the knit cap, and spent shell casings. Pictures were also taken

of the car which the district court observed “would seem to suffice” and Deputy

An testified that they fairly and accurately depicted the vehicle he attempted to

stop. The district court further permitted testimony and cross-examination of the

officers about the contents of the car, its subsequent destruction and any evidence

                                         12
of bad faith. Reynolds did file a Motion to Preserve Evidence (District Ct. Docket

Entry # 40) on May 24, 2006, before the car was destroyed, but the Motion was to

preserve all evidence, including “investigative reports, witness statements,

documents, . . . contraband, . . . and other physical evidence.” (Id. at 1.) The

“getaway” car was never specifically mentioned. Additionally, Reynolds did not

move to inspect the vehicle until January 31, 2007, after the car was already

destroyed and over eight months after the Motion to Preserve was filed. (District

Ct. Docket Entry # 105, Notice of Intent to Inspect Vehicle.)

      Again, assuming arguendo that the court erred in permitting testimony about

the destroyed vehicle, it was harmless. As discussed above, the jury heard

testimony about how the vehicle was destroyed. The jury also saw photographs of

the car, and the contents of the car were available for Reynolds’ use at trial.

Further, the car was not integral to Reynolds’ defense. Reynolds did not

specifically name the car in his Motion to Preserve Evidence, nor did he move to

inspect the car for eight months after he filed the Motion. The trial court found

that “quite frankly, the automobile itself does not appear to me, from my limited

perspective, as an important feature of the evidence in this case. The pictures that

we have seen of this vehicle would seem to suffice. What is important is the

laundry list of items that were found in that vehicle . . . ” Tr. at 231. Finally, there

                                           13
was ample evidence that Reynolds was connected to the car and the car was

connected to the robbery. Price, the driver of the car, identified Reynolds as a

passenger in the car; Reynolds was chased down after jumping out of the car;

Reynolds was seen holding a shotgun in the backseat of the car by both Price and

Deputy An; items found in the car were linked to the robbery; and Reynolds was

identified by the bank employees as the robber who left the bank in the “getaway”

car. Although counsel engaged in some speculation, there was nothing to suggest

that examination of the car would have revealed any exculpatory evidence.

      The court also correctly allowed the bank employees to testify, despite the

lost recordings of their previous statements. Reynolds had ample opportunity to

establish any inconsistencies in testimony that may have been demonstrated by the

lost tapes through other evidence. Reynolds cross examined the bank employees

and used investigative notes and officer testimony to bring the witnesses’ previous

statements before the jury. The jury also heard testimony from the officers about

the lost tapes and the jury was instructed about spoliation of evidence. Further,

there was no showing of bad faith. Finally, any error was harmless: the jury heard

testimony about the lost tapes, the cross examination of the bank employees, the

investigative notes, officer testimony, and the jury instruction of spoliation of

evidence before finding Reynolds guilty.

                                          14
C. Rule 11 Hearing Testimony

       Defendants Reynolds and Price appeal the court’s decision to allow the

introduction of testimony from Price’s Rule 11 hearing. Initially, Price entered

into plea negotiations with the government; he would plead guilty to armed

robbery and in exchange the government would dismiss the charge of possession

of a firearm by a convicted felon. On February 2, 2007, the district court held a

Rule 11 hearing for Price. Judge Bowen, however, did not accept Price’s guilty

plea because Price refused to admit he knowingly participated in the bank robbery.

As a result, Price went to trial. At trial, over the objections of both Defendants,2

the government introduced testimony from the Rule 11 hearing.

       In its cross-examination of Price, the government asked:

Q.   Do you remember testifying before this court earlier?
A.   Yes.
Q.   And when you testified at that time you were sworn by this clerk and you
     promised to tell the whole truth and you remember Judge Bowen was asking
     you some questions?
MR. LEOPARD:3 I am going to object. I am not sure what direction [the
                 government] is going in, but we could get into a dangerous
                 situation.



       2
          Price’s objection is the only objection reflected on the transcript, but Reynolds asserts
that he also objected. For purposes of this appeal, we assume that Reynolds objected timely to
the use of the Rule 11 testimony and is not precluded from bringing this issue up on appeal.
       3
           Daniel G. Leopard, Esq. represents Alvin L. Price in this action.

                                                  15
THE COURT:           I am going to allow an inquiry into his prior testimony, but only
                     his testimony.4
Q.     At that hearing this judge, Judge Bowen, asked you some questions and he
       specifically asked you ‘I’m not so concern[ed] [sic] about what happened at
       that point in time. I am concerned about what you knew or did not know at
       the time when you went to the bank with Mr. Reynolds tell me about that?’
       And your answer was: ‘at the time he was in the bank I was in the car and it
       was facing toward the traffic?’

Tr. at 363-64. The government continued:

Q.     Let me read something else to you. You said during that same hearing: Just
       a few seconds before ‘when I was there at the bank I was facing the traffic.
       He told me he was going to see someone. Okay. So, he got out and I was
       just looking around, just sight seeing because this is my first time in
       Georgia. He comes back in and he told me to go ahead and drive.’ Do you
       remember saying that?

Id. at 365.

       Federal Rule of Evidence 410 states that “any statement made in the course

of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure” is

inadmissable “against the defendant who made the plea or was a participant in the

plea discussions.” FED. R. EVID. 410(3). Although Rule 410 makes an exception

when the evidence is used for impeachment purposes, Rule 11(e)(6) of the Federal

Rules of Criminal Procedure, which supersedes Rule 410, only allows evidence of



       4
          It would have been extremely helpful if the lawyers had reminded the trial judge that
this testimony had come from a Rule 11 hearing. At the Rule 11 hearing, immediately after the
judge had refused to accept Price’s guilty plea, the judge advised the lawyers that none of this
would be admissible at trial.

                                               16
a withdrawn guilty plea to be admitted in a criminal proceeding for perjury or if

there is a false statement. United States v. Martinez, 536 F.2d 1107, 1108 (5th Cir.

1976); FED. R. CRIM. P. 11(e)(6). A defendant may also agree to waive his Rule

410 protections. United States v. Mezzanatto, 513 U.S. 196, 209 (1995) (“We

hold that absent some affirmative indication that the agreement was entered into

unknowingly or involuntarily, an agreement to waive the exclusionary provisions

of the plea-statement Rules is valid and enforceable.”).

      Price did not waive his Rule 410 protections and the Rule 11 testimony was

not admitted for perjury or because Price made a false statement. We find the

government’s use of Price’s Rule 11 testimony erroneous. However, if the

evidence against the Defendants, apart from the Rule 11 testimony, was sufficient

to support the jury’s guilty verdicts and was unaffected by the Rule 11 testimony,

then the misuse of the testimony is not reversible error. Drury, 396 F.3d at 1315

(“where an error had no substantial influence on the outcome, and sufficient

evidence uninfected by error supports the verdict, reversal is not warranted”);

Martinez, 536 F.2d at 1108 (“But we need not determine whether or not the error

was invited because we are convinced that in light of all the evidence presented at

trial the sworn statements had only a slight effect on the jury’s decision. Therefore

the government’s mistaken reliance on Rule 410 was harmless error.”).

                                         17
      With regard to Price, the Rule 11 testimony was not harmless and we

therefore find reversible error. As far fetched as it may seem, Price’s sole defense

was that he was so high on crack cocaine that he knew nothing about the facts

leading up to the bank robbery. At trial, Price testified at great length that he was

so intoxicated or high on crack cocaine before, during, and after the robbery that

he was unaware a robbery or any other crime had taken place. He therefore

claimed he did not have the requisite intent to commit the bank robbery or any

other offense. Price presented evidence that he smoked crack cocaine prior to and

during the stop at the bank (Tr. at 348); was unaware they had stopped at a bank,

that a robbery had occurred, or that a shotgun, a bag of money, a wig, and a white

jump suit were in the backseat of the car until Reynolds fired the shotgun at law

enforcement (id. at 353); would not have gotten in the car with Reynolds had he

known what was in the car or Reynolds’ intent (id. at 356); drove the “getaway”

car in a manner consistent with a person unaware that a crime had just taken place

- under the speed limit “like an old person was driving it” (id. at 111); did not run

from law enforcement, but slowly idled the car into the gas station (id. at 187); and

seemed unclear as to why a police officer was pulling him over when he was

apprehended (id. at 189).




                                          18
      Price’s Rule 11 testimony directly contradicted this defense. The

government suggested on cross examination of Price that at the Rule 11 hearing

Price had stated something to the effect that “when I was there at the bank I was

facing the traffic” and “at the time [Reynolds] was in the bank I was in the car and

it was facing toward the traffic.” Id. at 363-65. Price instantly and vehemently

denied ever using the word “bank.” He maintained that Reynolds had told him he

was going to see someone in a store. This testimony could have influenced the

jury’s finding that Price was cognizant of his surroundings during the robbery and

was therefore culpable. The importance of the testimony is reinforced by the

jury’s request for the Rule 11 hearing transcript during deliberation. The jury’s

reasoning behind its guilty verdict is unknown. However, due to the nature of

Price’s defense and the contrary testimony from the Rule 11 hearing, we find that

the testimony must have had a substantial influence on the jury’s verdict and was

not harmless error.

      With regards to Reynolds, the Rule 11 testimony was harmless and we

therefore find no reversible error. Reynolds argues that the Rule 11 testimony

insinuated the court believed Reynolds entered and exited the bank. That

insinuation, however, did not affect the outcome of the case. The record contains

too much inculpating evidence for the testimony to have affected the jury’s guilty

                                         19
verdict. First, Price testified that Reynolds was in the backseat of the “getaway”

car. Second, County agents found the white coveralls and the long, black wig

worn by the robber and identified at trial by the bank employees in the backseat of

that car. The car also contained shotgun shells, a knit cap, black gloves, the 6650

dollars stolen from the bank, and a wallet and a purse belonging to bank

employees. Third, Reynolds was identified as the robber by the bank employees

an hour after the robbery and he was identified again during the trial. Fourth,

Reynolds was wearing the same clothes as the robber and he had the same

distinctive teeth. Fifth, Officer An further identified Reynolds in live court as the

man who fired a shot in the direction of his vehicle and Price testified that after

hearing a loud noise he saw Reynolds holding a shotgun in the backseat of the car.

There was overwhelming evidence against Reynolds, unaffected by the Rule 11

testimony, to support the guilty verdict. Thus, we find the court’s ruling in this

regard was harmless error as to Reynolds.

D. Upward Departure at Sentencing

      Reynolds appeals the district court’s upward departure from the advisory

guideline range and its imposition of the maximum sentence allowed. Reynolds’

Pre-sentence Investigation Report recommended an advisory guidelines

sentencing range of 135 to 168 months for armed bank robbery and possession of

                                          20
a firearm by a convicted felon and a mandatory minimum of 120 months to be

served consecutively for discharge of a firearm during a crime of violence. Sent.

Tr. at 62-63. The district court chose to depart from the advisory guideline range

for armed bank robbery and imposed the maximum sentence allowed by statute of

300 months.

      When sentencing a defendant, a district court must first calculate the

guideline range and then consider the 18 U.S.C. § 3553(a) factors to arrive at a

reasonable sentence. United States v. Owens, 464 F.3d 1252, 1254 (11th Cir.

2006).

      Due to the nature and circumstances of this offense, the district court’s

upward departure was reasonable. After calculating the guideline range, the court

considered the 3553(a) factors and found that an increased sentence would further

the goals of punishment and deterrence. Further, citing the blatant nature of the

bank robbery, the court sentenced Reynolds above the guideline range because of

the particularly egregious facts of the case. Reynolds fired on law enforcement

and bank employees and even wounded an employee. The court explained that

“Mr. Reynolds blasted his way into the bank shouting and shooting and creating as

much terror and intimidation as he possibly could.” Sent. Tr. at 61. In fact, the

court could not recall any bank robbery where “a weapon has been discharged as

                                         21
wantonly as this one.” Id. at 62. We find the increased sentence was justified and

reasonable.

                                 IV. CONCLUSION

      Based on the foregoing analysis we affirm Reynolds’ convictions and his

sentence. We further reverse the judgment entered against Price and remand this

matter to the district court for a new trial.

      REYNOLDS’ CONVICTION AND SENTENCE AFFIRMED; PRICE’S

CONVICTION REVERSED AND REMANDED FOR A NEW TRIAL.




                                            22
