                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4605


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DENNIS EARL LEDBETTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:08-cr-00482-LO-1)


Submitted:   May 21, 2010                 Decided:   June 7, 2010


Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Arif, MARTIN, ARIF & GREEN, PLC, Springfield,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Benjamin L. Hatch, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           A federal grand jury indicted Dennis Earl Ledbetter,

charging   him    with     conspiracy       to   commit    armed       robbery,   in

violation of 18 U.S.C. § 371 (Count 1); armed bank robbery, in

violation of 18 U.S.C. §§ 2113(a) and (d) and (2) (Count 2); and

use of a firearm during a crime of violence, in violation of 18

U.S.C.   §§ 2    and 924(c)(1)(A)       (Count     3).         Ledbetter    pleaded

guilty to Count 2 and was convicted, after a bench trial, of

Counts 1 and 3.      On appeal, Ledbetter contests the sufficiency

of the evidence supporting the convictions on Counts 1 and 3

and, for the following reasons, we affirm.



                                        I.

           On the morning of October 23, 2008, at approximately

10 a.m., a short, somewhat heavyset black male, later identified

as John Wayne Morton, entered the Commerce Bank in Dumfries,

Virginia, wearing sunglasses and a ski mask.                   The man brandished

a   firearm,    ordered    all   of   the     patrons     on     the   ground,    and

commanded the tellers to empty their tills.                At least one teller

handed Morton money that included a dye pack.                    Morton also took

a black shaving kit that a customer had left on the counter,

which    contained        roughly     $1100      in      cash,     mostly     small

denominations.     In total, Morton took about $8500 from the bank.



                                        2
            A second black male, later identified as Ledbetter,

wore a mask over his face and stood by the door, holding it open

for their escape.        One of the tellers made eye contact with

Ledbetter   during    the     robbery,   and     the   teller    testified      that

Ledbetter was looking into the bank.               Ledbetter also drove the

getaway car, a Lincoln Town Car belonging to Morton’s mother,

from the bank.      While in the car, one of the dye packs exploded,

burning Morton’s leg.

            About thirty minutes prior to the robbery, an employee

with a self-storage facility located on the street behind the

bank saw a dark-colored Lincoln Town Car or Cadillac parked on a

small incline on the street.                 After the car sat for fifteen

minutes,    the    employee    became    concerned,      and     approached      the

vehicle, where he saw two men:               a heavy-set black male in the

front seat and another person in the back seat, who appeared to

be putting something over his face and then taking it off.                      The

employee watched the car move down the hill and park near his

own vehicle; he returned to the self-storage facility to assist

a customer and, by the time he returned, the car was gone.

            Later that day, around 3 p.m., Ledbetter entered the

Rent-A-Center in Landover, Maryland, near his home, to pay an

overdue account.      According to the clerk, Ledbetter, who worked

at an International House of Pancakes (IHOP) restaurant, was

wearing    his    uniform.      The   clerk      requested      three   weeks    of

                                         3
payments, but Ledbetter informed her that he was low on money;

they     eventually       agreed        to   a        two-week       payment    of    $99.48.

Ledbetter paid the amount in mostly tattered five and ten dollar

bills, although the clerk saw Ledbetter holding a one-and-a-half

inch roll of money.

               One week later, on October 31, 2008, agents with the

Federal Bureau of Investigation (FBI) arrested Morton, who lived

in Prince George’s County, Maryland, for the crime.                                    Several

days    later,       Ledbetter,      Morton’s             cousin,   turned     himself   into

authorities for his participation in the robbery.

               Based upon these events, a federal grand jury indicted

Ledbetter on December 4, 2008, charging him with conspiracy to

commit armed robbery, in violation of 18 U.S.C. § 371 (Count 1);

armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d)

and    (2)   (Count     2);    and     use   of       a    firearm    during    a    crime   of

violence, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A) (Count

3).     On January 23, 2009, Ledbetter pleaded guilty to Count 2,

armed    bank       robbery.      As    part         of    the   guilty     plea,    Ledbetter

agreed    to    a    statement     of    facts        that       provided    that    “[b]efore

entering the bank, John Wayne Morton put on a mask and Dennis

Earl Ledbetter tied a shirt around his face to disguise his

identity.”          The statement of facts also provided that Morton

brandished a firearm during the robbery, that Ledbetter stood by



                                                 4
the front door to act as a lookout, and that Ledbetter drove the

getaway car, Morton’s mother’s vehicle.

               On   February    10,   2009,     Ledbetter,     who    had   waived    a

jury, was tried by the district court on Counts 1 and 3.                            Both

Morton       and    Ledbetter     testified      extensively     at     the    trial,

although their accounts differed dramatically as to the planning

of the crime, the ownership of the gun used in the crime, and

the aftermath of the robbery.             Specifically, Morton, testifying

for the Government, stated that Ledbetter supplied the gun for

the robbery and chose the bank. 1             According to Morton, Ledbetter

forced Morton to commit the robbery, drove the getaway car, and

burned the stained clothing and money behind Morton’s apartment

in Suitland, Maryland.             Morton also testified that after the

robbery Ledbetter took $500 in cash when he left for work and

that       Ledbetter   returned    one   week    later   and    advised       Morton’s

mother to remove the license plates from her car.

               In   contrast,     Ledbetter     testified      that    he     did   not

supply the gun for the robbery, did not know that Morton was

going to use a gun, did not see Morton brandishing the gun

during the robbery, and did not want Morton to rob the bank.


       1
       In support of the claim that Ledbetter chose which bank to
rob, Morton noted that Ledbetter had previously lived in
northern Virginia, while Morton had never lived outside of
Prince George’s County, Maryland, and was unfamiliar with the
northern Virginia area.


                                          5
Ledbetter conceded that he pulled his shirt over his face and

assisted Morton by holding the door and driving the getaway car.

Ledbetter testified that he made the decision to help Morton

just prior to the robbery.             Ledbetter also testified that he did

not   receive     any      money   from    the   robbery     and    that    when    they

returned to Morton’s apartment he left to report for work at

IHOP.

            Ledbetter testified that when he returned to Morton’s

apartment one week after the robbery, he advised Morton’s mother

to take off her car’s tags and then removed them while she

watched.        Ledbetter     also    admitted     that,     during      his   pretrial

incarceration,        he    told    his    grandmother       what   he     termed    the

“original truth,” that he knew Morton was going to use a gun in

the robbery and that it made him nervous.

            The      district      court   found   Ledbetter        guilty     on   both

counts.     The district court first announced that it did not

“credit    Mr.       Morton’s      testimony     that   he    was     threatened      by

[Ledbetter] or that this was purely [Ledbetter’s] idea and that

he went kicking and screaming into his participation.”                         Instead,

the district court found “the evidence makes clear . . . that

this was a bank robbery committed by two cousins who have known

each other for 25 years who together planned and executed this

robbery    in    a    conspiracy.”         The   district      court     first      found

Ledbetter guilty under the principles announced in Pinkerton v.

                                            6
United      States,          328    U.S.    640,       646-47    (1946),    because          Morton

brandished a gun in furtherance of their conspiracy to rob the

bank.           In     the    alternative,         the     district      court       found    that

Ledbetter knew that Morton had a gun and was going to use it

during the robbery.                     The district court noted that the bank

surveillance video showed Ledbetter looking into the bank during

most of the robbery and that Morton consistently displayed the

gun during the robbery.

                 The     district         court     also      found      that    portions       of

Ledbetter’s              testimony           were         “undermined           by       several

inconsistencies.”              These inconsistencies included the testimony

of Aaron Hammond, the self-storage facility employee, that he

saw Ledbetter pulling a shirt over his face trying out disguises

thirty minutes before the robbery — testimony that suggested to

the district court “a plan, a calm and calculating participation

. . . long before you’ve admitting knowing that there was going

to    be    a    bank    robbery.”          Moreover,         the   district     court       found

Ledbetter’s testimony that he did not know the area inconsistent

with       his       ability       to    drive     “without       error”    back      onto      the

interstate after the robbery.                       In addition, the district court

found incredible Ledbetter’s testimony that he did not see the

bank proceeds in Morton’s hands as he exited the bank.                                          The

district court stated that the surveillance video clearly showed

the    money         “literally         taking    up    his     entire   midsection”          while

                                                   7
Ledbetter “[was] looking at him and making sure that he gets out

of that door.”

             Furthermore, the district court found that Ledbetter’s

testimony that he did not take any of the robbery proceeds was

undermined     by     his    presence         at       the     Rent-A-Center          with      small

denominations        of     money    and       an           additional       stack    of        bills.

Likewise,      the    district       court             noted       Ledbetter’s       conduct         in

telling      Morton’s       mother       to    remove             her     license    plates         was

“consistent with somebody who is a knowing participa[nt] in the

conspiracy to rob the bank.”                   Finally, the district court noted

Ledbetter’s criminal history included the possession of firearms

and   that    “the        version    of       events         as     you    laid     out    in       your

discussion with your grandmother is a significant admission that

in fact you knew that the gun was going to be used in the bank

robbery.”

             The district court ultimately sentenced Ledbetter to

108 months’ imprisonment, consisting of 24 months’ imprisonment

for   Counts    1     and     2,    and       84       months       for     Count     3,       to   run

consecutively        to    Counts    1    and          2.      Ledbetter      filed        a    timely

notice of appeal.



                                               II.

             On appeal, Ledbetter contests the sufficiency of the

evidence     supporting       his    convictions               on    Count    1     and    3.       “In

                                                   8
assessing the sufficiency of the evidence presented in a bench

trial, we must uphold a guilty verdict if, taking the view most

favorable to the Government, there is substantial evidence to

support the verdict.”       Elliott v. United States, 332 F.3d 753,

760-61 (4th Cir. 2003).       “[S]ubstantial evidence” is “evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”      United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc).           We “consider[s] circumstantial as

well as direct evidence, and allow[s] the government the benefit

of   all   reasonable   inferences   from   the   facts    proven   to   those

sought to be established,” United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982), and we assume that the fact finder

resolved all contradictions in the testimony in favor of the

Government.     United States v. Brooks, 524 F.3d 549, 563 (4th

Cir.), cert. denied, 129 S. Ct. 519 (2008).               We “can reverse a

conviction on insufficiency grounds only when the prosecution's

failure is clear.”       United States v. Moye, 454 F.3d 390, 394

(4th Cir. 2006) (en banc) (internal quotation marks and citation

omitted).

            Ledbetter first contests his conviction on Count 1,

which charged Ledbetter with violating 18 U.S.C. § 371.                  That

statute makes it a criminal offense if “two or more persons

conspire . . . to commit any offense against the United States,

                                      9
. . . and one or more such persons do any act to effect the

object of the conspiracy.”                Id.     We have reviewed the evidence

in     this      case   and    conclude         that   the   Government   produced

sufficient evidence from which a reasonable fact finder could

conclude that Ledbetter conspired to rob the Commerce Bank with

Morton.         In addition to Morton’s testimony regarding Ledbetter’s

role       in     planning     the    robbery,         the   Government   produced

circumstantial evidence supporting the verdict. 2                   For instance,

Hammond testified that he saw a man, Ledbetter, attempting to

put something on over his face while sitting in a car behind the

bank.       This testimony corroborated Morton’s testimony that he

and Ledbetter parked behind the bank for a period of time and

that Ledbetter tried on different disguises in the back seat.

                Likewise, the fact that Ledbetter drove the getaway

car and was able to drive directly to the interstate despite the

presence of multiple turns supported Morton’s testimony that it

was Ledbetter who chose the bank to rob, having previously lived

in northern Virginia.            In addition, Ledbetter’s presence at the

Rent-A-Center with small denomination bills and an additional

stack      of    cash   as    well   as    his    comments   to   Morton’s   mother


       2
       The district court found incredible Morton’s testimony
that Ledbetter forced him to rob the bank.         Contrary to
Ledbetter's assertions, however, the district court did not
discredit Morton’s testimony that the idea and planning for the
bank robbery originated with Ledbetter.


                                            10
regarding the car’s license plate were, as the district court

found, “completely consistent with somebody who is a knowing

participa[nt] in and taken part of the proceeds of the bank

[robbery].”

            Ledbetter         also       challenges             the    sufficiency         of     the

evidence supporting his conviction on Count 3, which charged him

with   violating         18   U.S.C.       § 2       and    § 924(c)(1)(A).                Section

924(c)(1)(A) creates a graduated penalty scheme for any person

who “during and in relation to any crime of violence” “uses or

carries a firearm, or who, in furtherance of any such crime,

possesses      a    firearm.”            Id.      Ledbetter            was    charged      with     a

violation      of    subsection          (ii),    which         sets       forth    a    mandatory

minimum     of      seven     years       imprisonment                if    the     firearm       was

“brandished.”        18 U.S.C. § 924(c)(1)(A)(iii).

            Ledbetter contends that there is insufficient evidence

to   convict       him   of   the    §     924(c)      violation             on    the   basis    of

Pinkerton liability.            See Pinkerton v. United States, 328 U.S.

640,   646-47       (1946)     (holding          fellow         conspirators          liable      for

substantive         offenses        committed              by     a        co-conspirator          in

furtherance of the conspiracy).                      “A defendant may be convicted

of a § 924(c) charge on the basis of a coconspirator's use of a

gun if the use was in furtherance of the conspiracy and was

reasonably       foreseeable        to    the     defendant.”                United      States    v.

Wilson, 135 F.3d 291, 305 (4th Cir. 1998).                                    See also United

                                                11
States v. Cummings, 937 F.2d 941, 944 (4th Cir. 1991) (applying

Pinkerton doctrine that “conspirators liable for all reasonably

foreseeable acts of their co-conspirators done in furtherance of

the conspiracy” to 924(c) convictions). 3

              We    have     reviewed      the    evidence      in    this    case     and

conclude     that     the    Government     produced      sufficient        evidence    to

sustain the conviction.               Ledbetter overlooks the fact that the

district      court     did     not    discredit        Morton’s      testimony      that

Ledbetter, not Morton, brought the gun.                        Indeed, the district

court      plainly     stated       that   it     did    not    credit       Ledbetter’s

testimony     regarding       the     presence     of   the    gun,   in     large   part

because Ledbetter told his grandmother that he knew Morton had a

gun.       Also, the district court found, both from testimony and

the    surveillance         videos,    that      Ledbetter     was    not    testifying

truthfully when he said that he did not see Morton using the gun


       3
       Ledbetter argues that Pinkerton liability for 18 U.S.C.
§ 924(c) offenses requires the Government to prove to a
“practical certainty” that Ledbetter knew Morton would have a
firearm.   Ledbetter culls this language from United States v.
Spinney, 65 F.3d 231, 239 (1st Cir. 1995), which required the
Government to meet that burden of proof in aider and abettor
liability under § 924(c). In contrast, every circuit, including
this court, has applied the familiar Pinkerton liability
standard to § 924(c) conspiracy charges.       See, e.g., United
States v. Shea, 150 F.3d 44, 50-51 (1st Cir. 1998); United
States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998); United
States v. Washington, 106 F.3d 983, 1011 (D.C. Cir. 1997);
United States v. Masotto, 73 F.3d 1233, 1240 (2d Cir. 1996);
United States v. Myers, 102 F.3d 227, 237 (6th Cir. 1996);
United States v. Wacker, 72 F.3d 1453, 1464 (10th Cir. 1995).


                                            12
during the robbery.                See United States v. Johnson, 444 F.3d

1026, 1029-30 (9th Cir. 2006) (denying motion for acquittal of

§ 924(c) charge for getaway driver who never entered bank during

robbery because he was present at planning meetings and evidence

was presented that the two robbers were wielding firearms in an

obvious fashion during the entrance and exit from the bank).

             Ledbetter           also    overlooks         that,       prior          to    trial       on

Counts 1 and 3, he pleaded guilty to armed bank robbery.                                          Armed

bank    robbery      requires          the   Government          to    establish            that      the

defendant, in committing bank robbery, “assaults any person, or

puts    in   jeopardy        the    life       of    any     person         by    the      use     of    a

dangerous weapon or device.”                    18 U.S.C. § 2113(d).                       It is thus

somewhat incongruous for Ledbetter to plead guilty to a crime

with the element of “use of a dangerous weapon” but then argue

that he did not know Morton would have a gun.                                See, e.g., United

States v. Burton, 126 F.3d 666, 679 (5th Cir. 1997) (affirming

sentence enhancement because it was reasonable foreseeable that

bank    robbery      would       use    a    firearm       given       the       “nature         of   the

offense”); United States v. Allen, 425 F.3d 1231, 1234 (9th Cir.

2005)     (affirming        § 924(c)         conviction          under           Pinkerton        where

defendant was present at a “morning of” meeting where guns were

present      and     their       use     was        discussed;         had        a    longstanding

friendship         with    a     co-conspirator            who        had        participated           in

previous     armed        bank     robberies;         and,    finding            that      “it    [wa]s

                                                13
reasonable to infer from the nature of the plan - the overtaking

of   a   bank   by    force      and   intimidation     -    that     guns    would   be

used.”).



                                         III.

            For      the   foregoing     reasons,      we    affirm    the    district

court’s judgment.          Ledbetter’s motion to substitute counsel is

denied.     We dispense with oral argument because the facts and

legal    contentions       are    adequately     presented      in    the     materials

before    the   court      and    argument     would   not    aid    the     decisional

process.

                                                                               AFFIRMED




                                          14
