                Case: 13-10658       Date Filed: 05/27/2014       Page: 1 of 28


                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-10658
                               ________________________

                         D.C. Docket No. 0:12-cr-60130-WJZ-1

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                             versus

BRYAN WHITEHEAD,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                       (May 27, 2014)

Before HULL, BLACK and FARRIS, * Circuit Judges.

PER CURIAM:

       Bryan Whitehead appeals his convictions and 471-month total sentence for

two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), and two counts of
       *
        Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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brandishing a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A). After careful review of the entire record, and with the benefit of

oral argument, we affirm Whitehead’s convictions, but vacate Whitehead’s

sentences and remand for resentencing.

                         I. FACTUAL BACKGROUND

      This case involves Whitehead’s commission of two bank robberies that

occurred within thirty miles of each other, two years apart. The first robbery

occurred on May 1, 2010, at a Bank of America in Delray Beach, Florida. The

second robbery occurred on May 21, 2012 at a BB&T Bank in Plantation, Florida.

We discuss the facts of both of these robberies below.

A.    May 1, 2010 Bank of America Robbery

      On the morning of May 1, 2010, Whitehead entered the Delray Beach Bank

of America, which had just opened for business, and shouted, “This is a bank

robbery. Everybody get down. This is not a joke. This is the real deal.”

Whitehead, a black male, had bare hands and wore a black mask to obscure his

face, a safari hat over the mask, loose blue hospital scrubs, and a stethoscope

around his neck. Whitehead was armed with a black semi-automatic gun.

      Whitehead ordered the bank’s employees not to push any alarms.

Whitehead vaulted over the counter that separated the tellers from the bank’s

lobby. As he leapt over the counter, a black walkie-talkie fell from the pocket of


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his pants onto the ground. Whitehead did not retrieve the walkie- talkie off of the

ground, and it remained there until law enforcement later discovered it.

         Whitehead ordered the tellers to bring the money from their drawers to him,

first removing any dye packs or tracking devices from the bills. 1 While the tellers

complied with Whitehead’s order, a bank customer started to exit the bank.

Whitehead pointed the gun at the customer, stated that he was “not playing,” and

racked the gun, letting those in the bank know the gun was loaded and ready to be

fired.

         Whitehead ordered, at gunpoint, the bank’s assistant manager to take

Whitehead to the bank’s vault, which was located in a separate room of the bank.

All of the bank employees went to the vault with Whitehead. Once at the vault, the

bank’s assistant manager and another bank employee opened the vault, emptied it

of money, and put the money, along with the money from the tellers’ drawers, into

a blue bag Whitehead had brought with him. Whitehead fled the bank with

approximately $30,000 in cash in his bag and was not apprehended by law

enforcement. Law enforcement was unable to determine the identity of the robber

immediately following the robbery.




         1
         At that time, Bank of America used dye packs, but not tracking devices. A dye pack is
placed into stacks of bills, and when taken from the bank, the dye pack explodes, causing
brightly colored paint to cover the bills and, possibly, the robber.
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      Law enforcement seized the walkie-talkie that Whitehead left behind and

swabbed the walkie-talkie and its batteries for DNA. Two years later, after

Whitehead’s arrest for the May 21, 2012 robbery, which we describe below, law

enforcement determined that the DNA on those swabs belonged to Whitehead.

B.    May 21, 2012 BB&T Bank Robbery

      On the morning of May 21, 2012, Whitehead, wearing a mask to obscure his

face, entered the Plantation BB&T Bank on Pine Island Road and ordered those in

the bank to “get on the ground now.” Whitehead held a black semi-automatic gun

and demanded that everyone put their hands in the air and refrain from pushing

the silent alarm. Whitehead’s hands were bare and looked “ashy” and “cracked.”

      This bank, unlike the Delray Beach branch of Bank of America, had bullet

resistance glass that separated the tellers from the lobby and customers. Whitehead

ordered a bank employee behind the glass to open the door that led to the tellers’

stations and the bank’s vault. The employee opened the door because she feared

what Whitehead would do to the customers and bank employees in the lobby if she

did not comply.

      Once behind the glass, Whitehead emptied the tellers’ drawers of cash into a

navy-blue- or black-colored laundry bag he carried with him. The bag was

“similar” to the blue bag Whitehead carried during the 2010 Bank of America

robbery. Whitehead then had a bank employee lead him to the bank’s vault, which


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was located in a separate room. Whitehead pointed his gun at that employee while

she opened up the bank’s vault for Whitehead, and Whitehead then put the cash

from the vault into his bag. Whitehead then fled the bank with almost $14,000 in

cash.

C.      The May 21, 2012 Perimeter Stop

        While the May 2012 bank robbery was in progress, a 911 operator received

a call that a robbery was occurring at the Plantation BB&T Bank located on Pine

Island Road. At 9:29 AM, officers from the City of Plantation police department

were dispatched to the scene. At 9:31 AM, an officer arrived on the scene, but

Whitehead was gone. Witnesses informed law enforcement that Whitehead had

crossed Pine Island Road on foot and disappeared behind hedges in front of an

apartment complex. An officer ordered that a perimeter be set up around the

surrounding streets “to contain the fleeing suspect[].”

        Law enforcement set up a perimeter around the bank, but there was a gap in

the perimeter at the Chevron gas station on the northwest corner of Pine Island

Road and West Broward Boulevard, about four blocks from BB&T Bank. Drivers

traveling south on Pine Island Road could turn into the gas station’s entrance on

Pine Island Road before reaching the perimeter checkpoint set up at the

intersection of Pine Island Road and West Broward Boulevard. These drivers




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could then drive through the gas station’s parking lot and exit onto West Broward

Boulevard in the westbound direction, thereby avoiding the perimeter checkpoint.

      At approximately 9:34 AM, Sergeant Douglas Powell arrived at the Chevron

gas station to fill the gap in the perimeter. Sergeant Powell parked his car at the

West Broward Boulevard exit of the gas station and activated his overhead lights

so that drivers could not leave the gas station without stopping at his checkpoint.

      Sergeant Powell asked each driver who went through the checkpoint

whether anyone had attempted to get in his or her car and looked at each driver to

see if he or she matched the description of the suspect set forth in a police

broadcast. The broadcast described the suspect as a black male, armed with a

black handgun, in his early twenties “with a gray shirt, tan pants with a black belt,

black shoes carrying a black bag.”2

      The first few cars passed Sergeant Powell’s checkpoint without incident.

Next, a gray truck pulled up to the checkpoint, and the driver, later determined to

be Whitehead, rolled down his window. Sergeant Powell observed a black male

driver, who appeared to be in his early twenties, was “sweating profusely” and not

wearing a seat belt.

      Based on Sergeant Powell’s observations and the fact that Whitehead was

sweating profusely, despite it not being hot and no one else sweating to such an


      2
          The bag was later determined to be blue.
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extreme degree, Sergeant Powell decided to investigate Whitehead’s identity and

asked him for identification. Whitehead searched for his license in several

compartments in his truck, but could not find it. Whitehead then lifted his hips

upward in an apparent attempt to retrieve his license from the left rear pocket of his

pants. When Whitehead lifted his hips, Sergeant Powell (1) saw that Whitehead

wore red pajama bottoms over tan pants and a black belt and (2) saw an antenna

sticking out of the left front pocket of Whitehead’s tan pants. Based on what

Sergeant Powell observed, he asked Whitehead to step out of the vehicle, and

Whitehead complied. As Whitehead complied, Sergeant Powell saw that

Whitehead wore no shoes and black sneakers lay on the floorboard of Whitehead’s

truck.

         Given the similarities between the broadcast description and his

observations, Sergeant Powell told Whitehead to place his hands behind his back.

While handcuffing Whitehead, Sergeant Powell noticed that Whitehead’s hands

were covered with a substance later determined to be super glue. Because of the

super glue on Whitehead’s hands, his hands appeared to be cracked. Sergeant

Powell believed that Whitehead used the super glue to conceal his fingerprints.

         Sergeant Powell then did a pat-down of Whitehead and removed a radio

from his pocket, which Sergeant Powell determined was actually a police scanner,

set to the broadcast of the Plantation Police Department’s dispatch


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communications. Sergeant Powell believed that Whitehead used the police scanner

to monitor the police department’s radio transmissions to know the department’s

whereabouts.

      At 9:37 AM, Sergeant Powell advised other officers that he had likely

detained the robber. Sergeant Powell radioed Officer Albert Clark, who was at the

scene of the robbery, to bring a witness to the gas station for a “show-up.” A

show-up involves a single suspect of a crime being presented to a witness for

identification.

D.    May 21, 2012 Show-Up

      After receiving Sergeant Powell’s request, Officer Clark decided to have

Violet Cepeda, the person best-positioned to observe Whitehead during the

robbery, BB&T Bank’s manager, identify the suspect. During the robbery, Cepeda

hid under the desk in her office and was as close as ten feet away from Whitehead.

Cepeda clearly saw the side of Whitehead’s face when, prior to exiting the bank,

he lifted his mask all the way up, off of his face. Cepeda continued to observe

Whitehead after he exited the bank until he disappeared into hedges across Pine

Island Road. During the robbery, Cepeda called 911 and gave the operator a

detailed description of Whitehead’s clothing and build, and Cepeda later gave a

more detailed description to law enforcement who arrived on the scene.




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        At approximately 9:41 AM, Officer Clark and Cepeda arrived at the

Chevron gas station for the show-up. While Officer Clark’s police vehicle was

slowing to a stop in front of Whitehead, Cepeda looked through the front

windshield, saw Whitehead from a distance of approximately ten feet away, and

stated that Whitehead was the bank robber. At the time of the identification,

Whitehead was in handcuffs and was surrounded by at least two uniformed police

officers, in addition to plainclothes detectives. Cepeda made the identification

without hesitation and was “a hundred percent positive” that Whitehead was the

bank robber. Cepeda determined that Whitehead was the robber based on his

profile, the shape of his face, his “pointy head,” his lankiness, and his complexion.

The police officers did not “parade” Whitehead in front of Cepeda, but did have

him turn and face the vehicle in which Cepeda sat. No one else was presented to

Cepeda as a possible suspect.

        After the show-up, law enforcement searched the inside of Whitehead’s

truck and discovered, inter alia, a firearm loaded with three rounds, a total of

$13,990 in U.S. currency (most was discovered in a blue bag, but some “loose

currency” was found in the truck too), superglue, sandpaper, ear buds, a hat, and a

mask.

        After Whitehead was arrested, an officer obtained a DNA sample from

Whitehead. The DNA sample was sent to the FBI’s laboratory, which determined


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that Whitehead’s DNA matched the DNA found on the walkie-talkie and batteries

left on the scene of the 2010 Bank of America robbery. The evidence showed that

there was a one in 4.4 trillion chance that the DNA belonged to an African-

American who was not Whitehead.

                         II. PROCEDURAL HISTORY

A.    Superseding Indictment

      In October 2012, a superseding indictment charged Whitehead with two

counts of bank robbery (Counts 1 and 3) and two counts of brandishing a firearm

during a robbery (Counts 2 and 4). Counts 1 and 2 concerned the 2012 BB&T

Bank robbery, and Counts 3 and 4 concerned the 2010 Bank of America robbery.

B.    Motion to Suppress Proceedings

      Also in October 2012, Whitehead filed a motion to suppress (1) evidence

found following the May 21, 2012 search of his vehicle because the stop and

search of his vehicle violated the Fourth Amendment and (2) Cepeda’s

identification of Whitehead at the gas station because that identification, made

pursuant to a show-up procedure, violated his due process rights. As to his Fourth

Amendment argument, Whitehead claimed that law enforcement lacked a

reasonable suspicion that he had committed or was committing a crime.

Whitehead did not specifically claim that the perimeter checkpoints constituted

impermissible suspicionless stops, in violation of the Fourth Amendment.


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      The district court denied Whitehead’s motion to suppress, finding that the

stop and search of Whitehead’s vehicle and Cepeda’s identification of Whitehead

as the perpetrator of the 2012 BB&T Bank robbery did not violate Whitehead’s

constitutional rights. The district court observed that Whitehead had “not

specifically challenged that the perimeter itself was violative of the Fourth

Amendment.” Nevertheless, the district court stated “that under these

circumstances, [the perimeter checkpoint did] not raise constitutional concerns.”

C.    Motion for Severance Proceedings

      In November 2012, Whitehead filed a motion to sever of Counts 1 and 2

(concerning the 2012 BB&T Bank robbery) from Counts 3 and 4 (concerning the

2010 Bank of America robbery), pursuant to Rules 8(a) and 14 of the Federal

Rules of Criminal Procedure. Whitehead claimed that Counts 1 and 2 were

unrelated to Counts 3 and 4 and thus joinder was improper under Rule 8(a).

Whitehead also claimed that he would be prejudiced if the district court did not

grant his motion because (1) virtually all of the evidence that would be presented at

trial stemmed from Counts 1 and 2 and (2) a jury could decide he was guilty of

Counts 3 and 4 based on his criminal disposition established by the evidence of his

commission of the crimes alleged in Counts 1 and 2. Thus, Whitehead argued that

severance was proper under Rule 14.




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      The district court denied Whitehead’s motion for severance and found

(1) that the joinder of Counts 1 and 2 with Counts 3 and 4 was proper under Rule 8

because the two incidents involved similar robberies that shared several similarities

and (2) Whitehead had not shown such compelling prejudice to warrant severance

under Rule 14.

D.    Trial

      During Whitehead’s four-day November 2012 trial, the government

presented evidence against Whitehead in the form of witness testimony and

surveillance videos from the relevant banks. After the government rested,

Whitehead moved for a judgment of acquittal under Rule 29 of the Federal Rules

of Criminal Procedure on Counts 3 and 4 (concerning the 2010 Bank of America

robbery), and the district court denied the motion. After Whitehead rested, he

renewed that motion, and the district court again denied the motion.

      The jury found Whitehead guilty of all four counts charged in the

superseding indictment.

E.    Sentencing

      The presentence investigation report (“PSI”) recommended base offense

levels of 20 for Counts 1 and 3 (the bank robbery charges), pursuant to U.S.S.G.




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§ 2B3.1(a).3 The PSI then added to each of those base offense levels: (1) a two-

level increase for taking the property of a financial institution, pursuant to

§ 2B3.1(b)(1); (2) a one-level increase because the loss was more than $10,000,

but not more than $50,000, pursuant to § 2B3.1(b)(7)(B); and (3) a four-level

increase for abduction of a person to facilitate the commission of the offense,

pursuant to § 2B3.1(b)(4)(A). Counts 1 and 3 each had an adjusted offense level of

27. Pursuant to the U.S.S.G. § 3D1.4 adjustment, Whitehead’s total combined

offense level for the two counts became 29.

       Whitehead’s advisory guidelines range on Counts 1 and 3 was 87 to 108

months’ imprisonment. Count 2 had a mandatory minimum consecutive term of

seven years’ imprisonment. Count 4 had a mandatory minimum consecutive

sentence of 25 years’ imprisonment.

       At sentencing on February 1, 2013, Whitehead objected to the four-level

increase for abduction under § 2B3.1(b)(4)(A). The district court overruled the

objection and adopted the guidelines range of 87 to 108 months’ imprisonment for

Counts 1 and 3, as set forth in the PSI and the PSI Addendum.

       The district court sentenced Whitehead to 87 months as to Counts 1 and 3, to

be served concurrently to each other; 84 months as to Count 2, to run consecutively



       3
         Because each bank robbery engendered a separate harm, Counts 1 and 3 were not
subject to grouping under U.S.S.G. § 3D1.2(d).
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to Counts 1 and 3; and 300 months as to Count 4, to run consecutively to the other

counts. Whitehead had a total sentence of 471 months’ imprisonment.

                                III. MOTION TO SUPPRESS

       A vehicle stop at a highway checkpoint is a seizure within the meaning of

the Fourth Amendment, which requires that a seizure by the government be

reasonable.4 City of Indianapolis v. Edmond, 531 U.S. 32, 37, 40, 121 S. Ct. 447,

451, 453 (2000). A “seizure is ordinarily unreasonable in the absence of

individualized suspicion of wrongdoing.” Id. at 37, 121 S. Ct. at 451.

       Nevertheless, the Supreme Court has permitted suspicionless vehicle

checkpoint seizures in certain circumstances. Id. at 37-38, 121 S. Ct. at 451-52;

see Illinois v. Lidster, 540 U.S. 419, 423-26, 124 S. Ct. 885, 888-90 (2004)

(upholding suspicionless checkpoint to locate witnesses to a hit-and-run); see also

Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481 (1990)

(upholding sobriety checkpoint); United States v. Martinez-Fuerte, 428 U.S. 543,

96 S. Ct. 3074 (1976) (upholding checkpoint near border to detect illegal aliens).




       4
         As to motions to suppress evidence under the Fourth Amendment, this Court ordinarily
reviews the district court’s factual findings for clear error, and its application of the law to the
facts de novo. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000) (citation
omitted). This Court, however, reviews arguments not raised in a defendant’s motion to
suppress for plain error. United States v. Young, 350 F.3d 1302, 1305 (11th Cir. 2003). In this
case, the parties dispute the standard of review that applies. However, we need not resolve this
dispute because we find no error, let alone plain error, in the district court’s denial of
Whitehead’s motion to suppress.
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      Although we have not yet addressed in a published opinion the

constitutionality of suspicionless vehicle checkpoint stops set up to apprehend a

fleeing criminal suspect, we find the Supreme Court’s decisions in City of

Indianapolis v. Edmond and Illinois v. Lidster instructive.

      In Edmond, the Supreme Court examined the constitutionality of a highway

checkpoint program “whose primary purpose [was] the discovery and interdiction

of illegal narcotics.” 531 U.S. at 34, 121 S. Ct. at 450. The Supreme Court

determined that the suspicionless checkpoint violated the Fourth Amendment

because the stops were “justified only by the generalized and ever-present

possibility that interrogation and inspection may reveal that any given motorist has

committed some crime.” Id. at 44, 121 S. Ct. at 455. The Supreme Court declined

“to suspend the usual requirement of individualized suspicion where the police

seek to employ a checkpoint primarily for the ordinary enterprise of investigating

crimes.” Id. at 44, 121 S. Ct. at 455.

      However, the Supreme Court acknowledged that there were “limited

circumstances in which the usual rule [requiring individualized suspicion] does not

apply.” Id. at 37, 121 S. Ct. at 451. The Supreme Court stated that “the Fourth

Amendment would almost certainly permit an appropriately tailored roadblock set

up to thwart an imminent terrorist attack or catch a dangerous criminal who is

likely to flee by way of a particular route.” Id. at 44, 121 S. Ct. at 455. The


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Supreme Court explained that the “exigencies created by these scenarios are far

removed from the circumstances under which authorities might simply stop cars as

a matter of course to see if there just happens to be a felon leaving the

jurisdiction.” Id. The Supreme Court declined to “limit the purposes that may

justify a [suspicionless] checkpoint program to any rigid set of categories.” Id.

      In Lidster, the Supreme Court again addressed the constitutionality of

highway checkpoint stops. The Supreme Court held that “a highway checkpoint

where police stopped motorists to ask them for information about a recent hit-and-

run accident” was not presumptively unconstitutional. 540 U.S. at 421, 426, 124 S.

Ct. at 888, 890. The Supreme Court explained that, unlike the checkpoint program

at issue in Edmond, an information-seeking checkpoint was not “primarily for

general crime control purposes, i.e., to detect evidence of ordinary criminal

wrongdoing.” Id. at 423, 124 S. Ct. at 889-90 (quotation marks omitted). The

Supreme Court clarified that Edmond was limited to those “stops justified only by

the generalized and ever-present possibility that interrogation and inspection may

reveal that any given motorist has committed some crime.” Id. at 424, 124 S. Ct. at

889 (quotation marks omitted).

      Although the checkpoint at issue in Lidster was not presumptively

unconstitutional, the Supreme Court determined that the Fourth Amendment would

be violated unless the individual circumstances of the checkpoint were reasonable.


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Id. at 426, 124 S. Ct. at 890. The Lidster Court stated that, “in judging

reasonableness,” courts look to these three factors: “[1] the gravity of the public

concerns served by the seizure, [2] the degree to which the seizure advances the

public interest, and [3] the severity of the interference with individual liberty.” Id.

at 427, 124 S. Ct. at 890 (quotation marks omitted).

      In applying the three factors set forth in Lidster, the Supreme Court

determined that the relevant public concern served by the information-seeking

checkpoint was grave because police were investigating a crime that had resulted

in a human death, police needed to obtain more information at that time, and “the

stop’s objective was to help find the perpetrator of a specific and known crime, not

of unknown crimes of a general sort.” Id. at 427, 124 S. Ct. at 891. Further, “[t]he

stop advanced this grave public concern to a significant degree” because “[t]he

police appropriately tailored their checkpoint stops to fit important criminal

investigatory needs,” as the stop took place a week after the hit-and-run accident,

on the highway where the accident occurred, and at about the same time of night as

the accident. Id. Finally, “the stops interfered only minimally with liberty of the

sort the Fourth Amendment seeks to protect” because “each stop required only a

brief wait in line,” “[c]ontact with the police lasted only a few seconds,” “[p]olice

contact consisted simply of a request for information and the distribution of a

flyer,” “[p]olice stopped all vehicles systematically,” and the police did not act “in


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a discriminatory or otherwise unlawful manner while questioning motorists during

stops.” Id. at 427-28, 124 S. Ct. at 891.

      Based on Edmond and Lidster, we must engage in a two-part inquiry. First,

we must ensure that the perimeter checkpoints were not used for the “ordinary

enterprise of investigating crimes.” See Edmond, 531 U.S. at 44, 121 S. Ct. at 455

(quotation marks omitted). Then, we must decide whether the checkpoint stops

were reasonable based on their individual circumstances. See Lidster, 540 U.S. at

426-28, 124 S. Ct. at 890-91.

      Here, we have little difficultly concluding the perimeter checkpoints here

were unlike the checkpoint program at issue in Edmond and were justified by

exigencies created by the need to catch a known criminal who had just fled the

scene of an armed robbery. The perimeter checkpoints here were not for general

crime detection; rather, they were focused on one particular crime and one

particular suspect.

      The perpetrator, Whitehead, was an armed and dangerous criminal, who

had—minutes before—successfully robbed BB&T Bank by pointing his semi-

automatic firearm directly at bank employees to force them to give him the bank’s

money. Law enforcement knew that the robber had fled the area on foot, and there

was a real risk that, to complete his escape, he would need a get-away vehicle and




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that someone could be harmed in his attempt to gain access to that vehicle. 5 As the

evidence showed, officers asked each driver stopped by the perimeter checkpoint

whether anyone had attempted to get into his or her car.

       Although the Supreme Court thus far has declined to limit the purposes that

may justify a checkpoint program to any certain set of categories, see Edmond, 531

U.S. at 44, 121 S. Ct. at 455, we conclude that the perimeter checkpoint stops in

this case were justified by the immediate need to find the perpetrator of the armed

bank robbery, tailored to fit that need, and were not presumptively

unconstitutional.

       Further, after examining the three Lidster factors, we conclude that the

individual circumstances of the perimeter checkpoint stops here were reasonable.

See Lidster, 540 U.S. at 427, 124 S. Ct. at 890. The relevant public concern was

grave, in light of the need to find the perpetrator of an armed bank robbery. The

stops advanced this grave public concern to a significant degree, and the police

appropriately tailored the perimeter checkpoint stops to the state’s interest in

capturing a specific armed and dangerous criminal. The perimeter was set up in

the area immediately surrounding the bank. The officers at the perimeter

checkpoints stopped the cars only to see if the driver matched the description of the
       5
          It is undisputed that Whitehead ran across Pine Island road and disappeared behind
hedges in front of an apartment building. We note that a police dog had tracked Whitehead’s
trail after he left the bank and his trail ended at an empty parking space behind the apartment
building. It does not appear, however, that law enforcement knew about where Whitehead’s trail
ended at the time law enforcement set up the perimeter.
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robber and to ensure that no one had attempted to break into the drivers’ cars.

And, the perimeter’s duration was short: it was set up within minutes of the

robbery, and lasted only a few minutes, as Whitehead was found less than ten

minutes after the robbery.

      Finally, “the stops interfered only minimally with liberty of the sort the

Fourth Amendment seeks to protect.” See id. at 427, 124 S. Ct. at 891. As in

Lidster, each stop required only a brief wait in line and contact with the police

lasted only a few seconds, enough time for Sergeant Powell to observe the driver

and ask if anyone had attempted to enter the vehicle. See id. The police stopped

all vehicles systematically. And, Whitehead does not argue on appeal that the

police acted in a discriminatory or otherwise unlawful manner while questioning

motorists during the stops. Accordingly, we conclude that the perimeter stops

were reasonable under the Fourth Amendment, and the district court did not err in

denying Whitehead’s motion to suppress the evidence obtained as a result of a

perimeter stop.

                   III. EXCLUSION OF IDENTIFICATION

      “This Court employs a two-step analysis in assessing the constitutionality of

a trial court’s decision to admit an out-of-court identification.” United States v.




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Diaz, 248 F.3d 1065, 1102 (11th Cir. 2001). 6 First, we must determine whether

law enforcement used an identification procedure that is both suggestive and

unnecessary. See id.; Perry v. New Hampshire, 565 U.S. ___, ___, 132 S. Ct. 716,

724 (2012). If we conclude that law enforcement used such a procedure, “we then

must consider whether, under the totality of the circumstances, the identification

was nonetheless reliable.” Diaz, 248 F.3d at 1102. “Factors to be considered in

determining whether the identification was reliable include: (1) opportunity to

view; (2) degree of attention; (3) accuracy of the description; (4) level of certainty;

and (5) length of time between the crime and the identification.” Id.

       Whitehead argues that the show-up procedure, by which Cepeda identified

Whitehead, was unnecessarily suggestive. In support, he cites United States v.

Brownlee, 454 F.3d 131, 138 (3d Cir. 2006), holding that a show-up procedure was

unnecessarily suggestive because, inter alia, (1) the defendant was handcuffed and

surrounded by police officers when the identification was made; (2) no suspect

save the defendant was presented to any of the eyewitnesses; and (3) there was no

reason why the eyewitnesses could not have been taken to the police station for a

less suggestive line-up or photo array. Whitehead also cites United States v.

Hadley, 671 F.2d 1112, 1115 (8th Cir. 1982), stating that show-ups are “inherently

       6
        As to motions to suppress out-of-court identifications under the Due Process Clause, this
Court reviews a district court’s factual findings for clear error and its application of the law to
those facts de novo. United States v. Smith, 459 F.3d 1276, 1293 (11th Cir. 2006).

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suggestive and ordinarily cannot be condoned when a line-up procedure is readily

available.”

      The government argues that a show-up procedure is not always

unnecessarily suggestive, citing Johnson v. Dugger, 817 F.2d 726 (11th Cir. 1987),

in which this Court explained that show-ups “allow identification before the

suspect has altered his appearance and while the witness’[s] memory is fresh, and

permit the quick release of innocent persons.” Id. at 729.

      Here, we need not address the first step of our due process analysis. Even

assuming the show-up procedure was unnecessarily suggestive, we conclude, after

examining the relevant factors concerning reliability under the second step of our

analysis, that Cepeda’s identification of Whitehead was highly reliable. See Diaz,

248 F.3d at 1102. Cepeda had an opportunity to view Whitehead during the

robbery, as she testified that she observed him (1) in the lobby immediately after

his entrance, (2) when he stopped, prior to exiting, to pull up his mask “all the

way” off his face, and (3) after he had left the bank, without wearing his mask.

And, Cepeda was attentive during the crime and recalled specific details

concerning the robbery, including what Whitehead was wearing, the type of gun he

was carrying, and other details about his physical appearance. Before the show-up,

she relayed these details both to the 911 operator and, later, to Officer Clark.




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      Additionally, Cepeda was also accurate in her earlier description of

Whitehead, as demonstrated by the surveillance tape and Whitehead’s appearance

at the time of his arrest. Further, Cepeda’s recollection was fresh because the

identification was made approximately ten minutes after Whitehead left the bank.

In making the identification, she was approximately ten feet away from Whitehead

and had an unobstructed view. She observed the shape of Whitehead’s face and

his physique to identify him. And, at the show up and later at trial, Cepeda was

absolutely certain that Whitehead was the robber. Because Whitehead did not

show that Cepeda’s out-of-court identification was unreliable, we conclude that the

admission of that identification did not violate Whitehead’s due process rights.

      Alternatively, we conclude that any error in admitting Cepeda’s

identification was harmless, in light of the overwhelming evidence against

Whitehead as to Counts 1 and 2 of the indictment, concerning the 2012 BB&T

Bank robbery.

                   IV. SUFFICIENCY OF THE EVIDENCE

      We review de novo the district court’s denial of a Rule 29 motion. United

States v. Hernandez, 743 F.3d 812, 814 (11th Cir. 2014). “In doing so, we view

the evidence in the light most favorable to the government, drawing all reasonable

inferences and credibility choices in favor of the jury’s verdict.” Id. “If a




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reasonable jury could have found the defendant guilty beyond a reasonable doubt,

then we will not overturn the jury’s determination.” Id.

       Whitehead argues that the evidence was insufficient to support his

convictions arising out of the 2010 Bank of America robbery (Counts 3 and 4). 7

Whitehead does not challenge the absence of any of the elements to support his

2010 bank robbery and brandishing a firearm convictions, but rather argues that a

reasonable jury could not have found that he was the armed robber. However, the

evidence at trial, viewed in the light most favorable to the government, showed that

the DNA profile developed from the swabs of the walkie-talkie (and its batteries)

that the bank robber left behind matched Whitehead’s DNA. Furthermore, the

evidence showed that there was a one in 4.4 trillion chance that Whitehead’s DNA

profile could match the DNA of another African-American. Additionally, the blue

bag that the robber carried during the Bank of America robbery was similar to the

bag that Whitehead carried during the BB&T Bank robbery. And, the Bank of

America robbery, like the BB&T Bank robbery, occurred in the morning and was

carried out by a single masked, hatted, and armed perpetrator.

       Whitehead argues that the eyewitness testimony suggested that he was not

the perpetrator of the 2010 Bank of America robbery, as he is five feet ten inches

tall, and witnesses to the robbery testified that the robber was six feet five inches

       7
         Whitehead does not argue that the evidence was insufficient to support his convictions
arising out of the 2012 BB&T Bank robbery.
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tall and “six foot plus.” The witnesses’ statements about the robber’s height were

estimates, however, and not actual determinations of his height. And, we note that

the jury watched surveillance videos of the Bank of America robbery and had the

opportunity to compare Whitehead’s characteristics to those of the Bank of

America robber. In light of the DNA evidence connecting Whitehead to the 2010

Bank of America robbery, and the similarities between that robber and robbery and

the 2012 BB&T Bank robber and robbery, we conclude that the evidence was more

than sufficient to support Whitehead’s convictions on Counts 3 and 4.

                         V. SEVERENCE OF COUNTS 3 & 4

       Rule 8(a) allows an indictment to charge a defendant “in separate counts

with 2 or more offenses if the offenses charged . . . are of the same or similar

character, or are based on the same act or transaction, or are connected with or

constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a).8 “Rule 8(a)

is construed broadly in favor of initial joinder, allowing joinder of offenses that

‘are of the same or similar character,’ even if such offenses do not arise at the

same time or out of the same series of acts or transactions.” See United States v.

Hersh, 297 F.3d 1233, 1241 (11th Cir. 2002). “[W]hen offenses are joined under




       8
        This Court reviews de novo whether counts were properly joined under Rule 8(a) and
then reviews whether the district court abused its discretion in denying a motion for severance
under Rule 14. See United States v. Hersh, 297 F.3d 1233, 1241 (11th Cir. 2002).

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Rule 8(a) by virtue of their ‘same or similar character,’ the offenses need only be

similar in category, not in evidence.” Id.

     Rule 14 provides that a district court may order separate trials of counts

where the joinder of the counts in an indictment appears to prejudice the

defendant. Fed. R. Crim. P. 14(a). To justify reversal of the district court’s

decision denying severance under Rule 14, the defendant “must demonstrate that

he received an unfair trial and suffered compelling prejudice.” United States v.

Walser, 3 F.3d 380, 386 (11th Cir. 1993) (quotation marks omitted). “This is a

heavy burden, and one which mere conclusory allegations cannot carry.” Id.

(quotation marks omitted). Severance is not required when “the possible

prejudice may be cured by a cautionary instruction.” Id. at 387.

     Here, we conclude that Counts 1 and 2 (concerning the 2012 BB&T Bank

robbery) and Counts 3 and 4 (concerning the 2010 Bank of America robbery)

were properly joined under Rule 8(a) because the counts are all of the same or

similar character. See Fed. R. Crim. P. 8(a). Counts 1 and 2 were similar to

Counts 3 and 4 both in terms of the types of crimes charged and the similarities in

how the crimes were perpetrated.

     Further, the district court’s limiting instruction to the jury to evaluate the

evidence on the two bank robberies independently cured any possible prejudice.

Whitehead has failed to demonstrate that he “received an unfair trial and suffered


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compelling prejudice,” such that we must reverse the district court. See Walser, 3

F.3d at 386 (quotation marks omitted). We conclude that, in denying Whitehead’s

motion for severance, the district court did not err under Rule 8(a) and did not

abuse its considerable discretion under Rule 14(a).

                                    VI. SENTENCING

       If the district court misapplied the Guidelines, remand is appropriate unless

the sentence was not imposed “as a result of” the error. 18 U.S.C. § 3742(f);

United States v. Bradley, 644 F.3d 1213, 1299-1300 (11th Cir. 2011).9

       Under U.S.S.G. § 2B3.1(b)(4)(A), “[i]f any person was abducted to facilitate

commission of the offense or to facilitate escape,” the offense level is increased by

four levels. To be “‘[a]bducted’ means that a victim was forced to accompany an

offender to a different location.” See U.S.S.G. § 1B1.1, cmt. n.1(A); (defining

“abducted”); U.S.S.G. § 2B3.1, cmt. n.1. Where a “person was physically

restrained to facilitate commission of the offense or to facilitate escape,” only a

two-level increase applies, pursuant to U.S.S.G. § 2B3.1(b)(4)(B).

       Since Whitehead was sentenced, this Court has clarified that a bank branch

is treated as a single location, and thus, movement of victims within a bank branch

to individual offices or rooms does not constitute movement to a different location

for the purposes of the four-level abduction increase under § 2B3.1(b)(4)(A).

       9
       We review the district court’s application of the Sentencing Guidelines to the facts de
novo. United States v. Martikainen, 640 F.3d 1191, 1193 (11th Cir. 2011).
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United States v. Whatley, 719 F.3d 1206, 1221-23 (11th Cir.), cert. denied, 134 S.

Ct. 453 (2013). Instead, when a defendant forces victims at gunpoint to move to

different areas of a bank branch, the increase for physical restraint of victims

under § 2B3.1(b)(4)(B) applies. Id. at 1223.

      The district court erred in applying a four-level increase for abduction under

§ 2B3.1(b)(4)(A) instead of a two-level increase for physical restraint under

§ 2B3.1(b)(4)(B). Thus, Whitehead’s advisory guidelines range for the robbery

counts (Counts 1 and 3) was incorrectly calculated. We therefore vacate

Whitehead’s total sentence and remand for resentencing. Because the district

court erred in calculating Whitehead’s guidelines range, we do not reach his

arguments concerning the substantive reasonableness of his sentences.

                              VII. CONCLUSION

      For the foregoing reasons, we affirm Whitehead’s convictions, vacate

Whitehead’s sentences, and remand for resentencing consistent with this opinion.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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