      Case: 14-60747          Document: 00513624368              Page: 1      Date Filed: 08/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                            No. 14-60747                              United States Court of Appeals
                                                                                               Fifth Circuit

                                                                                             FILED
Cons. w/ 14-60751                                                                       August 4, 2016
                                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                                    Clerk

                 Plaintiff - Appellee

v.

KEITH ANTHONY KIEL, also known as Thug; RANDY LAVERNE
MARSHALL, also known as Boss, also known as Boss Hog,

                 Defendants - Appellants

------------------------------------------------------------------------------------------------------------

                                     Cons. w/ 14-60748

UNITED STATES OF AMERICA,

                 Plaintiff - Appellee

v.

KEITH ANTHONY KIEL, also known as Thug,

                 Defendant - Appellant



                     Appeals from the United States District Court
                        for the Southern District of Mississippi
                                 USDC No. 1:14-CR-1


Before KING, JOLLY, and ELROD, Circuit Judges.
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                                      No. 14-60747
PER CURIAM:*
       Keith Kiel and Randy Marshall were convicted for multiple crimes
connected to a series of bank robberies in Mississippi, Alabama, and Florida
between 2008 and 2013. On appeal, both defendants contend that the district
court erred by excusing a juror during trial. In addition, Marshall alleges
several evidentiary errors, and asserts a host of arguments regarding his
sentence. Finally, both Kiel and Marshall argue their trial lawyers were
ineffective. We find no reversible error, and accordingly affirm the district
court’s judgment.
                                             I.
       From May 2008 through May 2013, Keith Kiel and Randy Marshall
allegedly committed a series of bank robberies in Mississippi, Alabama, and
Florida. The first set of robberies occurred in 2008. On the morning of May
13, 2008, two men entered the First Federal Savings and Loan (“First Federal”)
in Gautier, Mississippi, wearing masks and gloves and carrying firearms.
While one robber vaulted the bank teller counter, the other robber secured the
offices and other rooms. During the robbery, one of the robbers also held his
firearm to the head of a bank employee, directing the employee to fill a
backpack with cash. The robbers ultimately fled with approximately $61,000
in a stolen vehicle. On the morning of June 19, 2008, two masked gunmen
committed a similar robbery at Regions Bank in Biloxi, Mississippi. Again, the
defendants fled in a stolen car. Marshall’s nephew, Reginald Robinson, drove
a second getaway car, which the defendants entered after abandoning the first




       * 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. 14-60747
stolen car soon after leaving the bank. Robinson later served as a cooperating
witness at the appellants’ trial.
      The second set of bank robberies occurred beginning in late 2012. 1 On
the morning of December 13, 2012, two masked, gloved men carrying firearms
robbed the Merchants & Marine Bank (“M&M Bank”) in Moss Point,
Mississippi. Similar to the 2008 robberies, one of the robbers went behind the
teller counter to collect money from the cash drawers, while the other robber
cleared offices within the bank. The robber securing the offices pointed his
firearm toward at least one bank employee and directed the employee to leave
the office and “get on the floor” in the main lobby. The robbers fled with
approximately $22,000 in a stolen vehicle. Two masked, gloved men carrying
firearms committed similar robberies at four other locations: the Wells Fargo
Bank in Pensacola, Florida; the Hancock Bank in Gulfport, Mississippi; the
Bancorp South Bank in Greenville, Alabama; and the Hancock Bank in Moss
Point, Mississippi. Lamarcus Moore, an associate of the defendants who pled
guilty to conspiracy to commit bank robbery, served as a cooperating witness
against Kiel and Marshall. Moore later testified that Marshall recruited him
to help with these robberies by driving a second getaway vehicle used by the
robbers after abandoning the stolen vehicle.
      Marshall and Kiel were ultimately indicted on multiple charges for their
alleged involvement in these bank robberies. The defendants were charged
with two counts of conspiracy, in violation of 18 U.S.C. § 371, with the objects
of each conspiracy listed as follows: (1) bank robbery, in violation of 18 U.S.C.
§ 2113(a) and (d); (2) brandishing a firearm during a violent felony, in violation
of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) interstate transportation of stolen


      1  Approximately one month after the Regions Bank robbery, Marshall was arrested
during a routine traffic stop on several unrelated, outstanding warrants. Following his
arrest, Marshall remained in custody from July 20, 2008, through May 4, 2012.
                                          3
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                                  No. 14-60747
vehicles, in violation of 18 U.S.C. § 2312. The government included two of the
bank robberies as overt acts furthering one of the conspiracies and the other
five robberies as overt acts furthering the other conspiracy. The defendants
were also charged with separate counts of bank robbery, brandishing a firearm
during a violent felony, and interstate transportation of stolen vehicles relating
to five of the seven robberies.
      The trial in this matter began on June 30, 2014. On the morning of
Monday, July 7th, the district court informed the parties that a juror had been
excused for health reasons. The district court judge, while speaking with the
juror over the phone, learned that the juror’s pre-existing condition of
hypertension had worsened over the weekend, and that he had been given new
medication and told to rest by his physician. An alternate juror that had
already been impaneled replaced him, and trial continued without delay.
      The trial ended on July 14, 2014. The jury found Marshall guilty on all
counts and found Kiel guilty on all but one count. The district court ultimately
imposed a total sentence of 1,704 months, or 142 years, with respect to
Marshall and a total sentence of 804 months, or 67 years, with respect to Kiel.
The defendants filed a timely appeal.
                                        II.
      We begin by addressing the defendants’ shared argument that the
district court erred in excusing a juror outside the presence of the defendants.
As stated, roughly halfway through the trial, a juror informed the district court
that a pre-existing medical condition had worsened and, at the advice of his
physician, he needed to rest for “at least a few days.” In addition, when the
district court inquired further about the effect the juror’s condition had on his
ability to serve as a juror, the juror definitively stated that his poor health
rendered him unable to continue as a juror. Thus, the district court excused
the juror. When the district court informed the parties that the juror had been
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                                       No. 14-60747
excused, the defendants did not formally object. The defendants did, however,
request that the record reflect their “great concern” that the court had excused
the only African-American juror.
       This court reviews a district court’s decision to dismiss a juror for abuse
of discretion. 2 United States v. Pruett, 681 F.3d 232, 247 (5th Cir. 2012).
Harmless error review applies when the district court communicates with, and
later excuses, a juror outside the presence of the defendants. See United States
v. Grubbs, 776 F.2d 1281, 1290 (5th Cir. 1985). “A district court’s decision to
remove a juror is discretionary ‘whenever the judge becomes convinced that
the juror’s abilities to perform his duties [has] become[] impaired.’” United
States v. Virgen-Moreno, 265 F.3d 276, 288 (5th Cir. 2001) (quoting United
States v. Leahy, 82 F.3d 624, 628 (5th Cir. 1996)). “Unless the court’s removal
of the juror has prejudiced the defendant, [this circuit] will not disturb the
court’s decision.” Id. “Such prejudice is found ‘if the juror was discharged
without factual support or for a legally irrelevant reason.’” Pruett, 681 F.3d at
247 (quoting Virgen-Moreno, 265 F.3d at 288).
       We conclude that the district court did not abuse its discretion in
dismissing the juror. It is undisputed that the district court’s decision to
excuse the juror had factual support; the defendants acknowledge that they
have no reason to believe that the excused juror was feigning his medical
condition, or otherwise exaggerating its effect on his ability to continue serving
as a juror. This court has, on numerous occasions, affirmed the dismissal of a
juror because a health condition renders the juror unable to continue service.
See, e.g., United States v. Huntress, 956 F.2d 1309, 1312–13 (5th Cir. 1992)



       2 The government urges that we should review the district court’s decision under the
plain error doctrine, since the defendants’ statement that they had “great concern” about the
juror’s excusal was insufficient to preserve the issue on appeal. For the reasons that follow,
however, the district court committed no reversible error under either standard of review.
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                                  No. 14-60747
(dismissing a juror from deliberations after the juror began to experience
mental illness).
      The defendants, however, contend that, even if the district court had a
sufficient factual basis for dismissing the juror, the court abused its discretion
in not notifying the defendants prior to the juror’s dismissal. They urge that
Federal Rule of Criminal Procedure 43(a) requires that “the defendant must
be present at . . . every trial stage, including jury impanelment and the return
of the verdict.”     Fed. R. Crim. P. 43(a)(2).       Relying on this presence
requirement, the defendants contend that they should have been given an
opportunity to establish that a short continuance would allow the juror to
recover from his health problems, and thus continue serving as a juror.
      These arguments lack merit. A district court is not required to conduct
an evidentiary hearing before dismissing a juror. See Virgen-Moreno, 265 F.3d
at 288 (stating that a district court is “not required to conduct an evidentiary
hearing, and the scope of the court’s investigation is within its sound
discretion”). Furthermore, to the extent that the district court may have
violated Rule 43 in dismissing the juror outside the presence of the defendants,
such an error is harmless. As stated, the defendants do not take issue with the
district court’s factual basis for dismissing the juror, and there is no indication
that the district court purposefully excluded the defendants from conference
when excusing the juror. See Grubbs, 776 F.2d at 1290 (holding that the
district court’s dismissal of a juror outside the presence of the defendant was
harmless error because the defendant was only inadvertently excluded from
conference with the juror); see also Dumas, 658 F.2d at 414 (“[T]he record
indicates that it was by inadvertence, not design, that Dumas was not notified




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                                       No. 14-60747
or present at the conference when the excusal was granted, and the error was
harmless beyond a reasonable doubt.”). 3
       In sum, the district court had factual support for excusing the juror; any
error in excusing him outside the presence of the defendants is rendered
harmless by the fact that the defendants’ absence was inadvertent and did not
affect the district court’s rationale for the excusal. Accordingly, the district
court did not err in dismissing the juror.
                                             III.
       Marshall alone also asserts that the district court committed multiple
additional errors affecting both his conviction and sentence. We first consider
Marshall’s arguments with respect to the trial proceedings, before turning to
the alleged sentencing errors.
                                              A.
       With respect to the trial proceedings, Marshall contends that the district
court erred in (1) allowing the government to impermissibly bolster the
credibility of cooperating witnesses; (2) allowing several law enforcement
officers to provide expert testimony on the bank robberies, despite that they
were never qualified as experts; and (3) allowing improper hearsay evidence to
be admitted. Marshall failed to object to these alleged errors at trial; thus, our



       3 We also note that, in both their briefing and at oral argument, the defendants
emphasized that the excused juror was the only African-American on the jury. The
defendants, however, do not contend that race played any part in the court’s decision to
excuse the juror. Nor do they allege that discriminatory reasoning infected the jury selection
process. Instead, the defendants merely contend that the district court abused its discretion
in not considering the effect the juror’s dismissal would have on the racial composition of the
impaneled jury. The defendants cite no law in support of the assertion that an otherwise
valid dismissal of a juror may be rendered unlawful simply because he or she was the only
minority juror. Moreover, we note that the juror was replaced by a previously selected
alternate juror and “[t]here is no question that alternates may replace seated jurors when
they become unable to serve.” United States v. Dominguez, 615 F.2d 1093, 1095 (5th Cir.
1980).

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                                  No. 14-60747
review is for plain error. United States v. Smith, 814 F.3d 268, 273 (5th Cir.
2016). Marshall must demonstrate that (1) there was an error, (2) the error
was plain or obvious, and (3) the error affected his substantial rights. Id. If
the defendant meets that burden, this court has the discretion to remedy that
error only if it “seriously affected the fairness, integrity, or public reputation
of the judicial proceeding.” Id. at 273–74 (citing United States v. Gracia, 522
F.3d 597, 600 (5th Cir. 2008)).
                                        1.
      First, Marshall argues that the Government impermissibly bolstered the
testimony of two accomplice witnesses, Robinson and Moore. During the direct
examination of both witnesses, the government questioned the witnesses
regarding provisions in their plea agreements that conditioned any
government advocacy for a lesser sentence on the coconspirators’ truthful
testimony. Moreover, on redirect, the government asked both Robinson and
Moore whether they were aware of who ultimately held the authority to grant
them a lesser sentence in exchange for their cooperating testimony. Both
Robinson and Moore answered that, as stated in the plea agreements, the
district court judge, and not the prosecution, was ultimately responsible for
deciding whether they would receive a lesser sentence for cooperating in the
prosecution of the defendants.
      Marshall now contends that the government wrongfully juxtaposed the
truthfulness provisions of Robinson’s and Moore’s plea agreements with the
fact that the district court judge had final authority to determine those
witnesses’ sentences. Marshall urges that, as a result, the jury was left with
the impression that the trial judge was monitoring the cooperating witnesses’
testimony, and would have prevented any untruthful testimony.
      When a defendant objects to allegedly improper statements made by a
prosecutor, this court “must first decide whether the prosecutor made an
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                                 No. 14-60747
improper remark.” United States v. Alaniz, 726 F.3d 586, 615 (5th Cir. 2013)
(quoting Gracia, 522 F.3d at 600 n.2). Attempting “to bolster a witness by
vouching for his credibility ordinarily is improper and constitutes error.”
United States v. Leslie, 759 F.2d 366, 378 (5th Cir. 1985). “While a prosecutor
may argue inferences and conclusions drawn from the evidence, he ‘may not
make explicit personal assurances of a witness’s veracity.’” Smith, 814 F.3d at
274 (quoting Leslie, 759 F.2d at 378). The allegedly improper remarks are,
however, to be viewed in the context “of the argument to which [the remarks]
responded.” United States v. Canales, 744 F.2d 413, 424 (5th Cir. 1984); accord
United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010). “When the defense
suggests that a witness will lie, the Government is entitled to show that the
witness has no motive to lie.” United States v. Aguilar, 645 F.3d 319, 323 (5th
Cir. 2011).
      Reviewing the record, it is apparent that the government’s discussion of
the plea agreements’ various provisions was not undertaken merely to bolster
Robinson’s and Moore’s credibility. Instead, it was in response to assertions
by the defense, made during opening statements, that the plea agreements
gave Robinson and Moore incentive to lie, as they had to “impress” the
government to receive leniency in sentencing. See, e.g., Trial Transcript at 171
(“[Robinson and Moore] have reasons to make deceptive comments, to be
untruthful, to be less than candid and honest . . . .”); id. at 176 (stating that
Robinson and Moore “need a deal with the government to stand a chance of
getting out of jail earlier”). The government was entitled to rebut the defense’s
repeated assertions that the plea agreements incentivized dishonest testimony
on the part of the cooperating witnesses; the government did so by showing (1)
that the plea agreements were contingent on truthful, and not necessarily
inculpatory, testimony; and (2) that the district court judge, not the
government, had the final authority to determine Robinson’s and Moore’s
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                                  No. 14-60747
sentences.   In addition, we note that, on cross-examination, the defense
introduced the plea agreements into evidence. Accordingly, the district court
did not commit plain error in allowing the government to discuss the plea
agreement provisions at issue.
                                       2.
      Marshall next contends that the district court committed plain error in
allowing several law enforcement officers to testify based on their specialized
experience with bank robberies. During the trial, multiple law enforcement
officers testified about observations they made when investigating the various
bank robberies allegedly committed by the defendants. For example, Michael
Brown, a detective for the Biloxi Police Department, testified that the method
in which these robberies were carried out—using guns, masks, and blatant
threats of force—were markedly different from the other bank robberies he had
investigated in his career, which tended not to involve overt threats of force.
The natural inference of this testimony was that all the robberies at issue were
committed by the same two individuals. In addition, FBI agent John McDavid
testified to various commonalities among the various robberies, including the
attire worn by the robbers in the surveillance footage and the time of day the
robberies took place.
      Marshall urges that such testimony was actually “expert” testimony, and
that the district court erred in admitting the testimony because the officers
were never formally qualified as experts. “[T]he distinction between lay and
expert witness testimony is that lay testimony ‘results from a process of
reasoning familiar in everyday life,’ while expert testimony ‘results from a
process of reasoning which can be mastered only by specialists in the field.’”
United States v. Ebron, 683 F.3d 105, 136–37 (5th Cir. 2012) (quoting United
States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)). In particular, “a lay
opinion must be the product of reasoning processes familiar to the average
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                                 No. 14-60747
person in everyday life.” Yanez Sosa, 513 F.3d at 200 (quoting United States
v. Garcia, 413 F.3d 201, 2015 (2d Cir. 2005)). Accordingly, “‘[t]o be considered
expert, testimony must involve more than common sense or the officer’s past
experience formed from firsthand observation.’”       Ebron, 683 F.3d at 138
(quoting United States v. Jackson, 549 F.3d 963, 975 (5th Cir. 2008) (internal
quotation marks omitted)).
      Here, the district court did not commit plain error in admitting the law
enforcement officers’ testimony as lay testimony. As stated, the majority of the
disputed testimony related to the officers’ comparing the similarities between
the robberies. Marshall has failed to show how such comparisons involve
something other than the “reasoning processes familiar to the average person
in everyday life.” See Yanez Sosa, 513 F.3d at 200. Accordingly, there was no
need for the witnesses to be qualified as experts before giving such testimony.
Furthermore, comparisons by John McDavid and Michael Brown of the modus
operandi of the robberies at issue in the present matter and other robberies
they had previously investigated in their law enforcement careers involve only
the officers’ common sense and their “past experience formed from firsthand
observation.” See Ebron, 683 F.3d at 138. In addition, we note that Marshall
does not urge that there was insufficient foundational testimony to qualify the
law enforcement officials as experts; instead, he confines his argument to the
fact that the witnesses were never formally tendered as experts. Thus, the
district court did not commit plain error in admitting the challenged testimony.
                                       3.
      Finally, Marshall argues that the district court erred in allowing
improper hearsay evidence to be admitted. Specifically, Marshall points to the
testimony of Jason Smith, an investigator with the Moss Point District
Attorney’s Office. Smith interviewed Melinda Sims, a friend of Marshall’s,
regarding Marshall’s involvement in the bank robberies. At trial, Smith
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                                 No. 14-60747
testified that, when shown surveillance footage of the M&M bank robbery,
Sims “fell back into her chair and put her hand over her mouth and started
crying.” Marshall contends that this testimony about Sims’s reaction to the
surveillance footage amounted to hearsay evidence asserting that Marshall
was, in fact, the individual in the footage; he further contends that the
testimony was offered in violation of the Sixth Amendment’s Confrontation
Clause. Again, our review is for plain error.
      The district court did not plainly err in admitting the testimony
regarding Sims’s reaction to the surveillance video. Federal Rule of Evidence
801 defines hearsay as a “statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c).
In this context, a “statement” means “a person’s oral assertion, written
assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed.
R. Evid. 801(a) (emphasis added). An assertion “has the connotation of a
positive declaration,” United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.
1990), such as a declarant pointing, United States v. Caro, 569 F.2d 411, 416
n.9 (5th Cir. 1978). Sims’s reaction to the video—placing a hand to her mouth
and crying—is not hearsay because it was not intended as an assertion. See 2
McCormick on Evidence § 250 (7th ed. 2013) (stating that “an uncontrollable
action or reaction by its very nature precludes any intent to make an
assertion”). In other words, although a jury might infer from Sims’s visceral
reaction that she knew the individual in the surveillance footage, it does not
follow that she intended to identify the individual in the footage. Furthermore,
Marshall has not provided any authority that such non-assertive actions
constitute   “testimony”   and   therefore   invoke   the   protections   of   the
Confrontation Clause. See United States v. Duron–Caldera, 737 F.3d 988, 992
(5th Cir. 2013) (noting that the Confrontation Clause bars the admission of
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                                 No. 14-60747
certain “testimonial statements,” and that “testimony” is defined as “‘[a]
solemn declaration or affirmation made for the purpose of establishing or
proving some fact.’” (quoting Crawford v. Washington, 541 U.S. 36, 51 (2004))).
Accordingly, the district court did not plainly err in admitting Smith’s
testimony.
                                       B.
      Having considered Marshall’s evidentiary arguments, we now turn to the
alleged sentencing errors. Marshall brings five separate arguments regarding
his sentence. We consider each argument in turn.
                                       1.
      First, Marshall contends that the district court erred when it sentenced
him based on a seven-year mandatory minimum for “brandishing” a firearm in
connection with the First Federal robbery. Marshall did not object to the
district court’s imposition of the seven-year minimum. Thus, we again apply
the plain error doctrine in our review, as it is described above.
      A person violates 18 U.S.C. § 924 if the person “uses or carries a firearm”
during a crime of violence, including bank robbery. 18 U.S.C. § 924(c)(1)(A). If
a person violates this statute, he or she is subject to a mandatory minimum
sentence of five years, but the minimum is increased to seven years “if the
firearm is brandished.” 18 U.S.C. § 924(c)(1)(A)(ii). Any fact that increases a
mandatory minimum sentence must be found by a jury beyond a reasonable
doubt. Alleyne v. United States, 133 S. Ct. 2151, 2159, 2163 (2013). Marshall
urges that the jury found him guilty only of “using or carrying a firearm,” which
results in a five-year mandatory minimum sentence. He emphasizes that the
verdict form did not include an option for the jurors to make a finding of
brandishing, as it asked jurors to decide only whether Marshall “used or
carried” a firearm during the bank robberies.


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                                 No. 14-60747
      It appears that the district court committed a “clear or obvious” error in
applying the seven-year mandatory minimum without a jury finding regarding
whether Marshall “brandished” a firearm. A finding of “brandishing” is the
operative fact that increases the mandatory minimum sentence from five years
to seven years. Under Alleyne, 133 S. Ct. 2151, and its progeny, such a finding
should have been made by the jury, not by the district court at sentencing.
Notwithstanding this error, however, we decline to exercise our discretion
under the plain error doctrine. We decline because the error in question does
not “seriously affect[] the fairness, integrity, or public reputation of judicial
proceedings.”    United States v. Olano, 507 U.S. 725, 732 (1993) (internal
quotation marks omitted).
      It is well established that this court may decline to correct a forfeited
error when the evidence of a judicially found fact is overwhelming and
uncontroverted. United States v. Cotton, 535 U.S. 625, 632–33 (2002); accord
United States v. Kizer, 554 F. App’x 311, 313 (5th Cir. 2014) (per curiam)
(unpublished). Here, there is significant unchallenged evidence that Marshall
“brandished” a firearm. Multiple eyewitnesses to the First Federal robbery
stated that the robbers had pointed firearms at bank employees, including
holding a firearm to at least one employee’s head. Such acts clearly constitute
“brandishing” a firearm for purposes of the statute. See 18 U.S.C. § 924(c)(4)
(defining “brandish” as “to display all or part of the firearm, or otherwise make
the presence of the firearm known to another person, in order to intimidate
that person”).
      In sum, there is considerable and undisputed evidence establishing that
Marshall brandished a gun in commission of at least two of the robberies.
Although the district court erred in not allowing the jury to make a finding of
“brandishing,” the existence of this overwhelming evidence causes the district
court’s mistake not to rise to such a level that it affects the fundamental
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                                        No. 14-60747
fairness or integrity of the proceedings.                Accordingly, Marshall has not
established reversible error under the plain error doctrine. 4
                                               2.
       Next, Marshall argues that the district court erred in considering the
Wells Fargo Bank and Bancorp South robberies when calculating his total
offense level under the Sentencing Guidelines. The district court, based in part
on Marshall’s involvement in the Bancorp South and Wells Fargo Robberies,
found that Marshall had an adjusted offense level of 35 for his conspiracy
convictions; after applying a multiple count adjustment pursuant to U.S.S.G.
§ 3D1.4, Marshall’s total offense level was calculated at 38.                      On appeal,
Marshall contends that the district court erred because the jury never
expressly found him guilty of committing those robberies, either as part of a
separate substantive offense or as part of the conspiracy convictions. Again,
Marshall did not object to this alleged error during sentencing, so we review
the issue under the plain error doctrine.
       We find that Marshall has failed to demonstrate error, much less the
“clear or obvious” error necessary to obtain relief under the plain error
doctrine. Marshall contends that the district court erred because an offense
level was calculated based on each bank robbery listed as an overt act in
furtherance of the objects of the conspiracies, even though the jury failed to
specify which overt act or acts were proved in connection with the conspiracies.



       4  Moreover, Marshall’s argument that the verdict form shows the jury rejected the
aggravating element of brandishing is unpersuasive. The case cited by Marshall, United
States v. Pizarro, 772 F.3d 284 (1st Cir. 2014), relied on Alleyne to hold that an error is always
plain when the sentencing court imposes a sentence for an aggravated crime the jury has
expressly rejected. Pizarro, 772 F.3d at 296. Here, however, the jury did not expressly reject
the brandishing element. Instead, the verdict form, through judicial oversight, allowed the
jury to find only that the defendant “used or carried” a firearm. In other words, nothing in
the jury verdict here indicates that the jury considered, and expressly rejected, a finding that
Marshall had “brandished” a firearm.
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                                  No. 14-60747
However, regardless of its findings as to specific overt acts, the jury found that
Marshall had committed all three objects of the two conspiracy counts (i.e.,
bank robbery; using, carrying, or brandishing a firearm during a bank robbery;
and interstate transport of stolen vehicles). The overt acts were not required
to be charged as separate substantive offenses because the offense of
conspiracy and the substantive offense “are separate and distinct crimes.” See
United States v. Duval, 846 F.2d 966, 976 (5th Cir. 1988). Furthermore, a court
may consider uncharged or acquitted conduct in sentencing a defendant in
accordance with U.S.S.G. § 1B1.2(d). See, e.g., United States v. Coleman, 349
F.3d 1077, 1088 (8th Cir. 2003) (holding that, even though the indictment only
alleged two bank robberies, a defendant could be sentenced based upon five
robberies because “a defendant may be held responsible for any of the acts of
the conspiracy”). Accordingly, the district court did not err by calculating
Marshall’s offense level using the Wells Fargo and Bancorp South bank
robberies.
                                        3.
      Marshall next contends that the district court erred in having his
sentence for the interstate transportation convictions run consecutively to,
instead of concurrently with, his sentence for the bank robbery convictions.
“Multiple terms of imprisonment imposed at the same time run concurrently
unless the court orders or the statute mandates that the terms are to run
consecutively.” 18 U.S.C. § 3584(a). Absent a statutory mandate, a district
court may order the sentences to run consecutively; the court, however, must
consider the various sentencing factors listed in 18 U.S.C. § 3553(a) when
deciding whether it is appropriate to have the sentences to run consecutively.
See 18 U.S.C. § 3584(b).     The sentences for Marshall’s bank robbery and
interstate transportation convictions were not required by statute to run
consecutively. See 18 U.S.C. §§ 2113(a), (d); 18 U.S.C. § 2312. The district
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                                    No. 14-60747
court, however, mistakenly concluded that the sentences were required to run
consecutively. 5   As a result, the court did not conduct an analysis of the
§ 3553(a) factors when ordering that Marshall’s sentences run consecutively.
      We hold that, under the plain error doctrine, the district court did not
commit reversible error. Although the district court committed clear or obvious
error in mistakenly believing that Marshall’s sentences were required by
statute to run consecutively, Marshall has failed to show that the district
court’s oversight “seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” See Olano, 507 U.S. at 732.
      The district court did err in asserting that Marshall’s bank robbery and
interstate transportation convictions required consecutive sentences, thus
foregoing consideration of the sentencing factors listed in 18 U.S.C. § 3553(a).
As we have repeatedly emphasized, however, “[t]he focus of plain error review
should be ‘whether the severity of the error’s harm demands reversal.’” United
States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (quoting
United States v. Farrell, 672 F.3d 27, 36 (1st Cir. 2012)); see also United States
v. Marcus, 560 U.S. 258, 266 (2010) (stating that circuit courts do not have to
exercise their discretion for any possible error and that an error creating a
“tiny risk [of actually resulting in harm to the defendant] . . . is most unlikely
to cast serious doubt on the ‘fairness,’ ‘integrity,’ or ‘public reputation’ of the
judicial system”).
      In the present matter, requiring the interstate transportation and bank
robbery sentences run concurrently, instead of consecutively, would reduce
Marshall’s sentence from 1,704 months to 1,584 months (i.e., 142 years to 132



      5   The district court stated that “each of these sentences represents the maximum
penalty provided by statute, and to run them consecutively, as the term has been used
throughout this sentencing statement, is a requirement also by statute. This results in a
total term of incarceration of 1,704 months or 142 years.”
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                                  No. 14-60747
years). See 18 U.S.C. § 2312. The district court had the authority to impose
either sentence; indeed, the firearm convictions, standing alone, authorized the
court to impose a sentence of up to life imprisonment. See United States v.
Sias, 227 F.3d 244, 246–47 (5th Cir. 2000). Moreover, there is virtually no risk
that the sentence imposed of 142 years will cause Marshall any greater harm
than a sentence of 132 years. Marshall was thirty-four-years old at the time
of conviction. Thus, either sentence is, in effect, one of life imprisonment. This
practical consideration, coupled with the fact that the district court had the
authority to render the sentence actually imposed, compels us hold that the
district court’s sentencing error does not affect the fundamental “fairness,
integrity, or public reputation” of the federal courts. We also note that
Marshall’s appellate counsel declined to argue this alleged sentencing error at
oral argument, despite being asked about the issue. Accordingly, we decline to
exercise our discretion under the plain error doctrine.
                                        4.
      Next, Marshall asserts that the district court erred in adding one point
to his criminal history score for a marijuana possession conviction. Marshall
urges that the evidence on record does not establish whether he was
represented by counsel when convicted of marijuana possession.             Again,
Marshall did not object to the alleged error at sentencing, so our review is for
plain error.
      Marshall’s argument fails because he has not shown the existence of a
plain or obvious error. “[I]n a collateral attack on an uncounseled conviction,
it is the defendant’s burden to prove that he did not competently and
intelligently waive his right to the assistance of counsel.” Iowa v. Tovar, 541
U.S. 77, 92 (2004). In the present matter, Marshall concedes that the record
does not establish whether he was represented by counsel for the proceedings
that led to the disputed conviction, or whether he waived counsel in the
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                                  No. 14-60747
misdemeanor case. Thus, Marshall has failed to show that the district court’s
consideration of the previous conviction for marijuana possession amounted to
plain or obvious error. See United States v. Rubalcaba-Vazquez, 281 F. App’x
354, 355 (5th Cir. 2008) (per curiam) (unpublished) (“[T]he record does not
show whether these convictions were uncounseled because Rubalcaba-Vazquez
validly waived his right to counsel or because he was uninformed of his right
to counsel. Consequently, Rubalcaba-Vazquez has not carried his burden of
showing that the disputed convictions were constitutionally infirm, nor has he
shown plain error in connection with his sentence.”).
                                        5.
      Finally, Marshall challenges several sentencing enhancements that the
district court applied when calculating the offense levels for some of the
robbery-related counts. Unlike most of the alleged sentencing errors at issue
in this appeal, Marshall did object to these sentencing enhancements. Thus,
we do not apply the plain error doctrine; instead “[w]e review the application
of the sentencing guidelines de novo and the district court’s findings of fact for
clear error.” United States v. Jefferson, 258 F.3d 405, 412 (5th Cir. 2001).
      First, Marshall contends that the district court erred in applying a four-
level enhancement under the Guidelines for “abduct[ing] [a person] to facilitate
commission of the offense.” U.S.S.G. § 2B3.1(b)(4)(A). Under the Guidelines,
an “abduction” occurs when “a victim [is] forced to accompany an offender to a
different location.” U.S.S.G. § 1B1.1 cmt. n.1(A), § 2B3.1 cmt. n.1. Undisputed
evidence shows that, for the three robberies where the abduction enhancement
was applied, the robbers removed bank employees and customers from
individual offices at gunpoint, compelled the victims to move to the main lobby
of the bank, and forced the victims to lie on the ground as the robbers
completed their crime. Marshall, however, contends that such movement—
occurring entirely within the confines of the bank building—is insufficient to
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                                 No. 14-60747
establish that the bank workers and customers were moved to a “different
location,” which, as we have stated, is required for the abduction enhancement
to apply.
      We conclude that the district court did not err in imposing the abduction
enhancement.     This circuit has repeatedly held that “the term ‘different
location’ should be interpreted flexibly on a case by case basis.” United States
v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010).             Thus, an abduction
enhancement is proper “even though the victim remained within a single
building” when the forced movement of the victim facilitates the commission
of the offense or escape. Id. at 474. Indeed, this court has routinely held that
victims are “abducted” for the purposes of a bank robbery even when they never
leave the bank, so long as the victims are compelled to move from one area of
the bank to another to aid in the commission of the offense or to more easily
facilitate escape. See, e.g., United States v. Smith, 822 F.3d 755, 763–64 (5th
Cir. 2016); United States v. Holiday, 582 F. App’x 551, 552 (5th Cir. 2014).
Accordingly, the district court did not err in imposing a four-level increase for
abduction under U.S.S.G. § 2B3.1(b)(4)(A).
      Next, Marshall argues that the district court erred in applying the six-
level enhancement for “otherwise using a firearm” for two of the robberies. See
U.S.S.G. § 2B3.1(b)(2)(B). Under the Guidelines, “otherwise used” means “that
the conduct did not amount to the discharge of a firearm but was more than
brandishing, displaying, or possessing a firearm.” U.S.S.G. § 1B1.1 cmt. n.1(I).
Marshall urges that the evidence is sufficient to show only that he
“brandished” a firearm, but not that he “otherwise used” a firearm in the
commission of any robbery. This argument fails. In distinguishing between
when a firearm is “brandished” and “otherwise used,” this circuit has clarified
that “[d]isplaying a weapon without pointing or targeting should be classified
as ‘brandished,’ but pointing the weapon at any individual or group of
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                                  No. 14-60747
individuals in a specific manner should be ‘otherwise used.’” United States v.
Dunigan, 555 F.3d 501, 505 (5th Cir. 2009). As we have already discussed,
there is evidence that Marshall pointed his gun at specific victims during the
Wells Fargo Bank and Bancorp South robberies in an effort to compel their
movement or compliance. Thus, the district court did not err in applying a six-
level enhancement for “otherwise using” a firearm.
      Finally, Marshall contends that the district court clearly erred in
applying a two-level enhancement to the offense level of the Bancorp South
Bank robbery on the basis that Marshall was an “organizer or leader” of the
robbery. See U.S.S.G. § 3B1.1(c). Evidence at trial, however, showed that
Marshall recruited Moore (one of the cooperating witnesses) to participate in
the Bancorp South Bank robbery; this court has previously held that evidence
of recruitment supports the application of the two-level role enhancement.
United States v. Giraldo, 111 F.3d 21, 24–25 (5th Cir. 1997); accord United
States v. Ceballos–Amaya, 470 F. App’x 254, 262 (5th Cir. 2012) (per curiam)
(unpublished).   Accordingly, the district court did not err in applying the
enhancement for Marshall’s role in the robbery as a “leader or organizer.”
                                       IV.
      Lastly, we note that both defendants have raised ineffective assistance
of counsel claims related to alleged errors by trial counsel. Kiel argues that
his trial counsel’s failure to move for a mistrial after the district court excused
the juror amounted to ineffective assistance of counsel. Marshall contends that
his trial counsel rendered ineffective assistance when his counsel failed to
properly object below to numerous alleged evidentiary and sentencing errors,
thus subjecting them to plain error review on appeal. Marshall further urges
that his counsel was ineffective in failing to move for the exclusion of certain
DNA evidence.


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                                  No. 14-60747
      We decline to address the defendants’ ineffective assistance claims at
this time. “The general rule in the Fifth Circuit is that ineffective assistance
of counsel claims cannot be resolved on direct appeal if they were not raised
before the district court.” United States v. Wallace, 759 F.3d 486, 497–98 (5th
Cir. 2014). The rule exists because “typically at this stage, the record is not
sufficiently developed to allow th[e] court to meaningfully assess the merits of
the defendant’s allegations.” Id. at 498. We thus decline to consider the
defendants’ ineffective assistance of counsel claims at this time.            The
defendants are, of course, free to pursue these claims in a later post-conviction
proceeding.
                                        V.
      For the foregoing reasons, the defendants have not demonstrated any
reversible error, either with respect to the trial proceedings or their sentences.
Accordingly, the district court’s judgment is, in all respects,
                                                                    AFFIRMED.




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