                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-3131
                          ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   Michael K. Scott

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                              Submitted: April 11, 2013
                               Filed: October 22, 2013
                                   ____________

Before RILEY, Chief Judge, BRIGHT and BENTON, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       A jury convicted Michael K. Scott of two counts of bank robbery, in violation
of 18 U.S.C. § 2113(a), (d); two counts of using a firearm during a crime of violence,
in violation of 18 U.S.C. §§ 2 and 924(c); and one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1
sentenced Scott to concurrent sentences of life imprisonment on each of the
convictions for using a firearm during a crime of violence to be served consecutively
to 115-month concurrent sentences on the remaining three counts. Scott appeals, and
we affirm.

I.     BACKGROUND
       On February 3, 2010, a grand jury in the Western District of Missouri indicted
Scott on seven counts. Counts one and two (bank robbery and using a firearm during
a crime of violence, respectively) related to the September 2, 2008, robbery of the
Bank Midwest in Kansas City, Missouri. Counts three and four (also bank robbery
and using a firearm during a crime of violence, respectively) related to the June 19,
2009, robbery of the Valley View Bank in Kansas City, Missouri. Counts five and six
(same) related to the January 27, 2010, robbery of the Commerce Bank in Parkville,
Missouri. Count seven charged Scott with being a felon in possession of a firearm.

       A.     Bank Robberies
       The three bank robberies followed the same script. Unfortunately for Scott, that
script ended with a police chase, an arrest, and a life sentence. In each robbery, a
group of masked men burst into a Kansas City-area bank brandishing guns, ordered
everyone in the bank to lie down, and forced a bank employee to open the vault. After
emptying the vault, the men made their getaway in a stolen vehicle. The men returned
to a public location near the bank where a previously parked, non-stolen car awaited
them, ditched the stolen vehicle, and drove off in a car the police would have no
reason to suspect—or so the culprits thought.



      1
       The Honorable David Gregory Kays and the Honorable Ortrie D. Smith,
United States District Judges for the Western District of Missouri, adopting the reports
and recommendations of the Honorable Robert E. Larsen, Chief Magistrate Judge for
the Western District of Missouri.

                                          -2-
       But the robbers repeatedly gave themselves away. In the first robbery, rather
than not mentioning anyone’s name or strictly referring to each other by an alias, one
of the men told the shortest of their bunch “Mike, c’mon. Let’s go.” (Emphasis
added). Michael Scott is 5’4”. Then, Scott and the other robbers abandoned the
stolen vehicle under the eyes of surveillance cameras, which recorded them dropping
off Scott’s Jaguar and driving away in the stolen vehicle shortly before the robbery
and then returning and driving off in the Jaguar shortly after the robbery. As they
sped away, the Jaguar cut-off a driver who was friends with a local police officer. The
driver was suspicious because he observed one of the men in the car changing clothes,
so he noted the Jaguar’s license plate number and called his police officer friend, who
immediately notified the officers investigating the nearby bank robbery. The Jaguar
license plate number check identified Scott. By the end of the day, Scott’s Jaguar was
in FBI custody. In the car, officers found a dark mask containing Scott’s DNA.

       Scott went to retrieve his car from the FBI, and while he waited in the lobby
(not in custody) he struck up a conversation with an FBI agent—about bank robberies.
Explaining he knew about bank robbery because one of his neighbors had robbed
banks, Scott told the FBI agent he “wouldn’t drive his vehicle, his personal vehicle,
a foreign made Jaguar up in front of a bank and go in and rob the bank.” Only a
“youngster” would do that, Scott said. Instead, Scott explained he would “steal a
vehicle” and “drive up to the bank” in that stolen vehicle.

       In the second robbery, the men removed their masks as they drove away from
the bank in a stolen van. This allowed a woman standing in the parking lot to see their
faces as they drove by. The woman, Sandra Herdler, told police the van’s license
plate number and later identified Scott as the van’s driver and Claude White, who later
pled guilty to robbing the bank, as the passenger.

       In the third robbery, Scott took money containing a tracking device, and local
police immediately were able to follow him. Scott led police on a high-speed chase

                                         -3-
through a residential area, driving through yards, a field, and a fence before coming
to a stop at a terrace embankment. Kansas City, Missouri, police officer Larry White
arrested Scott. In Scott’s vehicle, police found, among other items, bundles of money,
two firearms, and a mask used in the robbery.

       B.    Motions
       On December 14, 2010, Scott moved to (1) sever the bank robbery counts and
(2) suppress evidence obtained from the search of his Jaguar. The magistrate judge
denied the motion to sever, finding joinder proper under Federal Rule of Criminal
Procedure 8(a), and severance unjustified under Rule 14(a).

       The magistrate judge held a suppression hearing on April 4, 2011. The hearing
centered on the September 2, 2008, search of Scott’s Jaguar. Testimony at the hearing
established that officers went to Scott’s apartment complex on September 2, 2008, and
saw a woman—later identified as Michon Starnes—drive up in a Jaguar. She parked,
got out with three children, and entered the apartment building. With their guns
holstered, FBI Special Agent Leena Ramana and two Kansas City, Missouri, police
officers knocked on the door; Starnes answered. Agent Ramana identified herself and
asked to speak about the Jaguar. Starnes agreed to allow the officers to check the
apartment. Additional officers entered the apartment, conducted a security sweep with
guns drawn, then these officers left the apartment. At that point, all guns were
holstered.

       Starnes told Agent Ramana that Scott lived in the apartment, she and Scott were
in an “on again, off again” relationship, and the last time she saw Scott was that
morning at 6:00 a.m. when she walked to work. Starnes reported the Jaguar was
Scott’s, but she then had the only set of keys to the Jaguar, and she was the primary
driver because Scott’s license was suspended. Starnes told Agent Ramana that Scott
left the Jaguar at her workplace earlier that day for her to drive home because it was
raining. Starnes agreed to allow the officers to search the car. Starnes accompanied

                                         -4-
Agent Ramana and three other officers to the Jaguar, signed a written consent, and
opened the Jaguar’s door and trunk. Starnes testified the officers “didn’t force [her]”
to consent and her consent was voluntary: “They asked and I said yes.”

       Based on this evidence, the magistrate judge issued a report on October 3, 2011,
recommending denial of Scott’s motion to suppress. Scott objected. On November
7, 2011, the district court overruled Scott’s objections, adopted the magistrate judge’s
report and recommendation, and denied Scott’s motion to suppress. The district court
rejected Scott’s contention that Starnes’s consent was invalid and involuntary, finding
Starnes “had common authority over the Jaguar,” “the law enforcement officers had
reason to believe common authority existed,” and Starnes voluntarily consented.

       C.      Conviction and Sentence
       On January 13, 2012, at the conclusion of a five-day trial, a jury found Scott
guilty of robbing Bank Midwest and Commerce Bank, using a firearm during those
robberies, and being a felon in possession of a firearm (Counts 1, 2, 5, 6, and 7), but
not guilty of robbing and using a firearm while robbing the Valley View Bank (Counts
3 and 4). Both parties agreed the statutory mandatory minimum sentence was
approximately 39 years, but the government sought a life sentence based on Scott’s
criminal history.

       On August 30, 2012, after considering “all the factors in fashioning a
punishment,” the district court2 sentenced Scott to life imprisonment on counts 2 and
6, to be served consecutively to a 115-month prison term—the top end of the United
States Sentencing Guidelines (Guidelines) range—on counts 1, 5, and 7. The district
court explained the sentence was “an upward variance based upon [Scott’s] criminal
history and the need to protect the public.” The district court “struggled” to find the
just punishment, and ultimately found the life sentence justified based on Scott’s long


      2
       On January 9, 2012, Judge Smith transferred the case to Judge Kays.

                                          -5-
criminal history (beginning with burglary, robbery, and aggravated assault at age 15,
followed by bank robbery at age 19), the need to protect the public, and the nature and
circumstances of the offense. “This is a bank robbery done with guns,” the district
court noted. “I think at least one person fainted or was on the ground in terror,
something of that nature,” the district court continued. Given the risk linked to Scott’s
conduct, the district court observed “the community is fortunate that no one died or
was hurt in a serious way during the course of [Scott’s] actions.”

II.   DISCUSSION
      In this appeal, over which we have jurisdiction under 28 U.S.C. § 1291, Scott
challenges the district court’s (1) denial of his motion to sever the charges, (2) denial
of his motion to suppress evidence obtained from a search of his car, and
(3) imposition of life sentences. We reject each challenge in turn.

        A.    Severance
        Whether charges may be joined under Federal Rule of Criminal Procedure 8(a)
is a legal question, which we review de novo. See United States v. Tyndall, 263 F.3d
848, 849 (8th Cir. 2001). A district court’s denial of a motion to sever properly joined
charges under Federal Rule of Criminal Procedure Rule 14(a) is reviewed for abuse
of discretion. See United States v. Young, 701 F.3d 1235, 1238 (8th Cir. 2012). We
“will not reverse unless the defendant shows [any] abuse of discretion result[ed] in
severe prejudice.” United States v. Steele, 550 F.3d 693, 702 (8th Cir. 2008).
“‘Severe prejudice occurs when a defendant is deprived of an appreciable chance for
an acquittal, a chance that [the defendant] would have had in a severed trial.’” United
States v. Taken Alive, 513 F.3d 899, 902 (8th Cir. 2008) (alteration in original)
(quoting United States v. Koskela, 86 F.3d 122, 126 (8th Cir. 1996)). Our review
leads us to conclude the district court properly denied Scott’s motion to sever.




                                          -6-
       First, the joinder of all seven charges against Scott did not violate Rule 8(a).3
The three bank robberies were “of the same or similar character,” the felon in
possession charge was “based on the same act or transaction” as the third bank
robbery, Fed. R. Crim. P. 8(a), and the crimes “occurred over a ‘relatively’ short
period of time.” Tyndall, 263 F.3d at 850. The modus operandi in each of the three
bank robberies was the same, and the last set of crimes (i.e., those relating to the
Commerce Bank robbery) occurred fewer than seventeen months after the first set of
crimes (i.e., those relating to the Bank Midwest robbery). Seventeen months is a
sufficiently short time under Rule 8(a). See United States v. Lindsey, 782 F.2d 116,
117 (8th Cir. 1986) (per curiam); see also, e.g., United States v. Rodgers, 732 F.2d
625, 629-30 (8th Cir. 1984) (finding twenty months was short enough).

         Second, joining all charges related to the three bank robberies resulted in no
“appear[ance] [of] prejudice” to Scott. Fed. R. Crim. P. 14(a). The acquittals on
counts three and four speak for themselves: the jury weighed the evidence as to each
count separately, finding some reasonable doubt as to Scott’s complicity in the Valley
View Bank robbery despite otherwise compelling evidence, including Herdler’s
eyewitness identification. The government could have admitted evidence related to
Scott’s modus operandi, which he openly discussed with an FBI agent, in separate
trials. See Fed. R. Evid. 404(b) (permitting “[e]vidence of a crime, wrong, or other
act . . . . [to] prov[e] . . . plan, knowledge, [or] identity.”); United States v. Boyd, 180
F.3d 967, 983 (8th Cir. 1999) (“As the evidence would have been admissible in a

       3
        Although the indictment joined both offenses and defendants, Scott never
argued, either in the district court or on appeal, joinder was improper under Rule 8(b).
Cf. United States v. Mann, 701 F.3d 274, 289 (8th Cir. 2012) (“Where an indictment
joins defendants as well as offenses, the propriety of the joinder of offenses is
governed by Rule 8(b), rather than Rule 8(a).”). Any such argument is therefore
waived. See, e.g., United States v. Greene, 513 F.3d 904, 906 (8th Cir. 2008). Even
if Scott had preserved such an argument, he could not show prejudice from any Rule
8(b) misjoinder because he was not tried alongside any other defendant. See, e.g.,
Mann, 701 F.3d at 290.

                                            -7-
separate trial for another crime under Rule 404(b), a joint trial does not result in
additional prejudice.”). Scott has fallen far short of showing the “severe prejudice”
required for reversing the district court’s denial of his motion to sever. Steele, 550
F.3d at 702.

       B.      Suppression
       “When reviewing a district court’s suppression determination, we review the
court’s factual findings for clear error and its legal conclusions de novo.” United
States v. Quintero, 648 F.3d 660, 665 (8th Cir. 2011). “The voluntariness of a consent
to search is a factual question that is reviewed for clear error.” United States v. Saenz,
474 F.3d 1132, 1136 (8th Cir. 2007). We discern no error in the district court’s
conclusions (1) Starnes “had common authority over the Jaguar,” and (2) Starnes
voluntarily consented to the search.4

              1.     Common Authority
       As a legal matter, “[c]onsent to search, a valid exception to the warrant
requirement, Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), may be given
either by the suspect or by some other person who has common authority over, or
sufficient relationship to, the item to be searched.” United States v. James, 353 F.3d
606, 613 (8th Cir. 2003) (emphasis added) (citing United States v. Matlock, 415 U.S.
164, 171 (1974)). The district court correctly concluded that the search of the Jaguar
did not violate the Fourth Amendment if Starnes had common authority over the car.

       As a factual matter, the district court did not clearly err in finding Starnes had
common authority over the Jaguar based on “mutual use, joint access, and control.”
Id. (“Common authority . . . is a question of fact.”). Starnes not only drove the Jaguar,


      4
       Because we agree with the district court’s analysis, we need not consider the
government’s contention that because the mask was in plain sight the officers did not
need Starnes’s consent.

                                           -8-
but explained to the officers that she was the Jaguar’s only licensed driver (Scott’s
license was suspended). Starnes had the only key to the car, and earlier that day Scott
expressly told Starnes she could drive the car home from work. Even if Scott is
correct that he gave Starnes only narrow permission to drive the car home from work
because it was raining, Starnes described for the officers her control over the car in
broad terms sufficient to give a reasonable appearance of authority. See United States
v. Nichols, 574 F.3d 633, 636 (8th Cir. 2009) (explaining the Fourth Amendment does
not require suppression of the fruits of a search conducted in “reasonabl[e] rel[iance]
on the consent of a third party who demonstrates apparent authority to authorize the
search, even if the third party lacks common authority”).

               2.     Consent
       Given that Starnes testified she freely “said yes” and unlocked the car herself,
the district court did not err in finding her consent voluntary. Scott’s argument to the
contrary relies entirely on the number of officers present and the fact that some of the
officers had their guns drawn when those officers secured the apartment premises.
This reliance is doubly misplaced.

        First, the district court reasonably refused to credit Starnes’s testimony that
there were “ten to fifteen law enforcement officers.” Second, the evidence shows that
at the time Starnes consented to the search, only a few officers were present, all with
their guns holstered. The security sweep of the apartment, conducted by officers with
guns drawn, was an understandable security measure considering the perpetrators of
the Bank Midwest robbery were heavily armed. The security sweep ended before
Agent Ramana interviewed Starnes and asked for her consent to search the Jaguar.
The district court’s finding that Starnes voluntarily consented was amply justified by
the evidence. See Quintero, 648 F.3d at 667; United States v. Kelley, 594 F.3d 1010,
1013 (8th Cir. 2010).




                                          -9-
       C.    Sentence
       We review a district court’s sentencing decision for abuse of discretion. See,
e.g., United States v. Washington, 515 F.3d 861, 865 (8th Cir. 2008). We begin by
“ensur[ing] that the district court committed no significant procedural error.” Gall v.
United States, 552 U.S. 38, 51 (2007). Once assured the sentence is “procedurally
sound,” we “consider the substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard[,] . . . . tak[ing] into account the totality of the
circumstances.” Id. Consistent with Gall, we defer to the district court’s conclusion
that Scott deserved two life sentences because the district court (1) carefully
considered the § 3553(a) factors, and (2) imposed a substantively reasonable sentence.

       First, the district court committed no significant procedural error. Scott admits
the district court correctly calculated Scott’s advisory Guidelines range and “relied on
the [§ 3553(a)] factors.” Scott argues the district court erroneously believed “at least
one person [in the bank robbery] fainted or was on the ground in terror, something of
that nature.” It is true there is no evidence anyone fainted, but Scott ignores the
critical “or” in the district court’s statement. The record shows several individuals
were “on the ground in terror” and were deeply traumatized by the experience. The
district court did not base the sentence on “clearly erroneous facts.” Id.

      Neither did the district court fail to explain adequately its reasons for varying
upward. The district court explained the sentence was “an upward variance based
upon [Scott’s] criminal history and the need to protect the public.” The district court
noted Scott had “spent a lot of [his] life in prison,” but “prison hasn’t had much of a
rehabilitative effect upon [Scott], [who] continue[d] to commit crimes involving guns
subsequent to [his] release.” By “locking Michael Scott up,” the district court said,
“we know there’s not going to be any more bank robberies, at least at his hands, and
we won’t have to worry about [Scott] possessing a gun.”




                                         -10-
        Second, the sentence was substantively reasonable. Viewed with “due
deference” to the district court’s careful consideration of the § 3553(a) factors, the
record amply shows life sentences were justified for the reasons described by the
district court. Id. at 51-52. Scott’s sole argument to the contrary centers on his age:
56 at the time of sentencing. A defendant’s “advanced age” is a possible, but not
mandatory, basis for granting a downward variance. See United States v. Chase, 560
F.3d 828, 831 (8th Cir. 2009). “Advanced age,” under some circumstances, could
itself be a basis for an upward variance. The record shows the district court carefully
considered all § 3553(a) factors, “struggled” to find a “just punishment,” “considered
the arguments of the counsel involved in the case,” and determined a life sentence was
appropriate given Scott’s extensive criminal history and the need to protect the public.

      It does not matter whether we might think a lesser sentence more justified
because even the statutory minimum sentence would keep Scott in federal prison past
the age of ninety.5 The Supreme Court has instructed us that the mere “fact that the

      5
        Geriatric prisoners place a heavy financial strain on the prison system. See,
e.g., Ashby Jones & Joanna Chung, Care for Aging Inmates Puts Strain on Prisons,
Wall St. J., Jan. 27, 2012, at A2 (reporting on the high health-related costs associated
with America’s rapidly aging prison population, although noting taxpayers will pay
for these health costs whether the individual is in or out of prison). Although violent
crime rates decrease with age, the young do not have a monopoly on violence. See,
e.g., Catherine F. Lewis et al., A Study of Geriatric Forensic Evaluees: Who Are the
Violent Elderly?, 34 J. Am. Acad. Psychiatry L. 324 (2006).

       Of course, the wisdom of incarcerating elderly offenders as a categorical policy
matter is for Congress, not us, to decide. “[T]he relevant policy considerations do not
invariably point in one direction, and there is vehement disagreement over the validity
of the assumptions underlying many of them. The very difficulty of these policy
considerations, and Congress’ superior institutional competence to pursue this debate,
suggest that legislative not judicial solutions are preferable.” Patsy v. Bd. of Regents
of Fla., 457 U.S. 496, 513 (1982) (footnote omitted). Thus, while encouraging
sentencing courts to consider a defendant’s age, we defer to each sentencing court’s
case-by-case judgment on whether a particular defendant’s age justifies a lesser or

                                         -11-
appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at
51 (emphasis added). Consistent with our limited appellate role in sentencing, we
conclude the sentence was substantively reasonable. See, e.g., United States v. Stults,
575 F.3d 834, 849 (8th Cir. 2009) (“Where [a] district court in imposing a sentence
makes ‘an individualized assessment based on the facts presented,’ addressing the
defendant’s proffered information in its consideration of the § 3553(a) factors, such
sentence is not unreasonable.” (quoting Gall, 552 U.S. at 50)).

III.   CONCLUSION
       We affirm.

BRIGHT, Circuit Judge, dissenting.

       I concur with the majority’s decisions concerning severance and the evidentiary
ruling, but I respectfully dissent as to the sentencing issue.

       The sentence of 115 months in prison plus two life sentences imposed on
Michael Scott by the district court represents a prime example of what may be called
“gilding the lily.” It is unreasonable and excessive. For all practical purposes, the
roughly 39-year mandatory minimum sentence in this case—for a defendant who is
56 at the time of sentencing—would have itself amounted to a sentence of life
imprisonment. I ask what more is required. The sentence in this case is unreasonable
and simply represents an effort to send a message of being tough on crime. But that’s
not the purpose of a sentence.

       Prior to the enactment of the Sentencing Guidelines, one of America’s great
jurists, Judge Edward Devitt of the District of Minnesota, observed that “[a] short


greater sentence. See United States v. White, 506 F.3d 635, 644 (8th Cir. 2007).

                                          -12-
sentence will most likely accomplish the same objective. It is primarily the fact of
incarceration, not the length of it, which best serves the ends of justice.” Hon. Edward
J. Devitt, The Ten Commandments for the New Judge, 47 A.B.A. J. 1175, 1177 (Dec.
1961). Although the Guidelines do not reflect this principle, I believe it is still
important and should apply in cases such as this.

       As an appellate judge, I add another observation. The federal courts are now
entering a new era of sentencing. Eric H. Holder, Jr., the United States Attorney
General, has recently called for a new approach to criminal sentencing in the federal
courts. The Attorney General emphasized the harsh reality that, as it stands today,
“our system is in too many respects broken.” Eric Holder, Attorney General of the
United States, United States Department of Justice, Remarks at the Annual Meeting
of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. Indeed, I
agree with the Attorney General that “too many Americans go to too many prisons
for far too long, and for no truly good law enforcement reason.” Id.

       The clearly excessive sentence imposed in this case illustrates very graphically
the broken criminal justice system in the federal courts. Here, had Scott received a
39-year sentence—which the parties agreed was the mandatory minimum sentence in
this case—he would be in prison until he was 95 years old. Yet the district court felt
the need to impose a 115-month sentence followed by two life sentences. The district
court justified the sentence by emphasizing Scott’s “criminal history and the need to
protect the public.” But just how much protection does the public need from a 95-
year-old man—assuming Scott were to live that long? According to the National Vital
Statistics Reports, at the time he was sentenced, Scott was expected to live for another
27 years, or until he is about 83 years old. See Sherry L. Murphy et al., National
Center for Health Statistics, National Vital Statistics Reports, Vol. 61, No. 4, at 30
(May 8, 2013), available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/
nvsr61_04.pdf. A 39-year sentence would have been more than enough to serve as

                                         -13-
a deterrent and an appropriate punishment for a series of bank robberies, during which
no one fired a gun and no one was physically injured. But instead, the district court
imposed a substantially unreasonable sentence that is greater than necessary to
accomplish the goals of sentencing. See 18 U.S.C. § 3553(a). This sentence is not
justified and is improper and I will not affirm a sentence that is obviously too harsh
and imposed simply to appear tough on crime.

     I would reverse and remand this case with instruction to the district court to
impose a sentence no greater than a 39-year sentence.
                      ______________________________




                                        -14-
