                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 08-4798


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

STEVEN EDDINGTON,

                Defendant - Appellant.



                             No. 08-4799


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TIMOTHY WAYNE EDDINGTON,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Rock Hill.       Cameron McGowan Currie,
District Judge. (0:07-cr-01149-CMC-02; 0:07-cr-01149-CMC-01)


Argued:   January 28, 2011                 Decided:   March 11, 2011


Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: Steven Michael Hisker, Duncan, South Carolina; James P.
Rogers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South
Carolina, for Appellants.    Thomas Ernest Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.          ON
BRIEF: W. Walter Wilkins, III, United States Attorney, Robert C.
Jendron, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

         Following separate jury trials, co-defendants Timothy Wayne

Eddington         and    his      son,    Steven           Eddington,       were       convicted     of

conspiracy to commit bank robbery, in violation of 18 U.S.C. §§

371, 2113(a) (2006); carrying an explosive during the commission

of   a       felony,    in     violation         of       18   U.S.C.   §    844(h)(2)          (2006);

possession of unregistered destructive devices, in violation of

26   U.S.C.        §    5861(d)        (2006);         and      possession       of         destructive

devices in furtherance of a crime of violence, in violation of

18   U.S.C.        §    924(c)(1)(A)         (2006).            In   addition,          Timothy      was

convicted         of    being     a     felon     in       possession       of     a    firearm,      in

violation of 18 U.S.C. § 922(g)(1) (2006). Timothy and Steven

received sentences of 600 months and 521 months, respectively.

We   reject       each       of   the    Appellants’            assignments            of    error   and

affirm the convictions and sentences.

                                                      I.

         On appeal, Timothy Eddington raises six issues, and Steven

joins        in   the    final        three. 1    First,         Timothy     argues           that   the

         1
       Timothy has also filed a pro se motion to relieve his
attorney, a supplemental brief, and a statement offering to
serve more time in prison or receive a death sentence in
exchange for a new trial for Steven, who was eighteen years old
at the time of the offenses. We deny Timothy’s motion to relieve
his attorney, and we decline to consider his supplemental brief,
since he is represented by counsel. Further, we note that the
district court conducted a thorough colloquy with Timothy before
he decided to testify at his own trial.


                                                      3
district    court        should     have       suppressed       his       statements         because

they were induced by a law enforcement agent’s false promise to

charge him only with trespassing. Second, he argues the district

court should have granted a mistrial after co-defendant William

Puckett stated that Timothy obtained money for the pipe bomb

supplies from “another crime.” Third, he argues the prosecutor

improperly shifted the burden of persuasion to the defense by

arguing    that      Timothy        could      have       called     Steven’s         girlfriend,

Christy Barnes, as a witness.

      Together,         the      Eddingtons         contend:       (1)    possession         of    the

pipe bombs did not further any conspiracy under 18 U.S.C. §

924(c);     (2)      the        evidence       was       insufficient          to    support       the

conspiracy charge; and (3) convictions for 18 U.S.C. § 924(c)

and   18   U.S.C.        §    844(h)      violate         double    jeopardy         because       the

provisions        “are       essentially            identical.”          We     consider       these

contentions in turn.

                                                 A.

      We   determine            whether    a    confession         was     unconstitutionally

coerced by the totality of the circumstances. See Arizona v.

Fulminante,       499      U.S.    279,     285-86        (1991).        The    existence         of    a

promise    in     connection         with       a       confession       does       not    render      a

confession        per      se     involuntary.            See   id.;      United          States       v.

Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc) (“The mere

existence       of      threats,       violence,           implied       promises,          improper

                                                    4
influence, or other coercive police activity . . . does not

automatically render a confession involuntary.”). In this case,

the record fully supports the district court’s denial of the

motion to suppress.

       York County Sheriff’s Department Captain Jerry Lee Hoffman

read Timothy his Miranda rights and had Timothy read them out

loud himself. Hoffman ended an initial interview because Timothy

said he was not feeling well, and Hoffman reviewed Timothy’s

rights    before     commencing            the    second        interview.       Furthermore,

Timothy does not point to any evidence of coercion other than

Hoffman’s     alleged         promise       that      Timothy        would      only   face    a

trespassing charge, and this alleged promise did not involve

actual    physical       violence       or       “a   credible         threat    of    physical

violence.”     Fulminante,           499     U.S.       at    288.     Nor   was   there      any

indication that the investigating agent's statement “critically

impaired” Timothy's “capacity for self-determination,” Braxton,

112    F.3d   at   780    (internal         quotation          marks    omitted),      or    that

Timothy's will “was overborne in such a way as to render his

confession the product of coercion,” Fulminante, 499 U.S. at

288.

       Timothy     argues      that    post-hearing             testimony       from   his    co-

defendants corroborates the existence of the assertedly unlawful

promise. Specifically, co-defendant William Christopher Puckett

testified     that       he    was    not        told        about   the     possibility       of

                                                 5
receiving     a    trespassing        charge          until    after   Puckett      made    his

statement.        Co-defendant            Edgar        Scott     Williams,         IV,     also

testified,        albeit       somewhat     contradictorily,           that    he    was    not

informed about the trespassing charge until after he made his

statement.        Finally,       at   a    separate         suppression       hearing,      the

district court considered and rejected a claim from Steven about

the   trespassing          charge.        This       testimony,     which     is    at     best

inconclusive, does not support reversal.

                                                 B.

      Next, Timothy contends that the district court erred by

denying his motion for a mistrial after co-defendant Puckett

testified that Timothy got the money to purchase shotgun shells

“from another crime we committed.” We review a district court’s

denial of a motion for a mistrial for an abuse of discretion.

United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008).

      Here,       the    district         court       immediately      struck       Puckett’s

response and admonished the jury not to “consider [the response]

at all” in deliberations. In the district court’s final charge

to the jury, the court also told the jury that the commission of

a   past   crime        does    not   support         the     conclusion    the     defendant

committed the charged crime. 2 Given the district court’s careful

      2
       Timothy Eddington, who was charged with possession of a
firearm by a convicted felon, stipulated that he had a prior
felony conviction.


                                                 6
instructions and the small part, if any, this reference played

in the trial, the district court did not abuse its discretion in

denying      the   motion     for     a     mistrial.      See    United      States    v.

Williams, 461 F.3d 441, 451 (4th Cir. 2006) (noting that this

court presumes the jury follows court’s limiting instructions).

                                            C.

      Timothy        next    contends       that     the    Government's         closing

argument improperly shifted the burden of persuasion when the

prosecutor     asserted       that    Timothy      could    have    called      Steven’s

girlfriend, Christy Barnes, as a witness. We review a claim of

prosecutorial misconduct “to determine whether the conduct so

infected     the     trial   with    unfairness      as    to    make   the    resulting

conviction a denial of due process.” United States v. Scheetz,

293   F.3d    175,    185    (4th    Cir.    2002)   (internal      quotation        marks

omitted). “The test for reversible prosecutorial misconduct has

two   components;        first,      the     defendant      must    show      that     the

prosecutor's remarks or conduct were improper and, second, the

defendant must show that such remarks or conduct prejudicially

affected his substantial rights so as to deprive him of a fair

trial.” Id.

      We have carefully reviewed the record and find no basis for

relief. Given the context of the prosecutor’s statements, the

claim’s      tangential      subject      matter,    and    the    district      court’s



                                             7
remedial instruction, we conclude that Timothy has not shown

prejudice.

                                         D.

       Next,   both     Appellants     challenge    their      convictions   under

Count Four, which alleged that, “during and in relation to a

crime of violence,” they possessed pipe bombs in furtherance of

such crime. (JA I 30). This court reviews a sufficiency of the

evidence challenge by determining whether, viewing the evidence

in    the   light   most    favorable   to    the   Government,     any   rational

trier of fact could find the essential elements of the crime

beyond a reasonable doubt. United States v. Collins, 412 F.3d

515, 519 (4th Cir. 2005); see Glasser v. United States, 315 U.S.

60,    80    (1942).     We   review    both    direct      and   circumstantial

evidence, and accord the Government all reasonable inferences

from the facts shown to those sought to be established. United

States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). We will

uphold the jury’s verdict if substantial evidence supports it,

and will reverse only in those rare cases of a clear failure by

the prosecution. United States v. Foster, 507 F.3d 233, 244-45

(4th    Cir.   2007),      cert.   denied,    128   S.   Ct.    1690   (2008).   “A

defendant challenging the sufficiency of the evidence faces a

heavy burden.” Id. at 245.

       In order to prove a violation of 18 U.S.C. § 924(c), the

Government must prove that the defendants (1) used, carried, or

                                         8
possessed a firearm, (2) in furtherance of a crime of violence.

See § 924(c)(1)(A); United States v. Jeffers, 570 F.3d 557, 556

n.7 (4th Cir. 2009). In this case, the Eddingtons argue “that

possession     of    the     pipe   bombs      did   nothing       to   further    the

conspiracy because the conspiracy was formed, if at all, prior

to the possession of the pipe bombs.” 3 The Government responds

that conspiracy is a continuing offense and, in this case, the

bombs were made to “divert the attention of the police during

the robbery.”

      Ample    evidence       supports        Appellants’       convictions.       They

purchased the materials for the pipe bombs and then assembled

the bombs for use in connection with the robbery. The evidence

at trial showed the conspirators discussed using the bombs as a

diversion.    Since    the    inchoate      crime    of      conspiracy   to   commit

robbery is itself a crime of violence, it is irrelevant that the

conspirators     did   not    actually      use   the     bombs    to   complete   the

robbery. See United States v. Phan, 121 F.3d 149, 153 (4th Cir.

1997) (“The relevant question is whether Phan actively employed

the   handguns      during   and    in   relation       to   the   conspiracy,     not


      3
       In support, the Eddingtons rely on a passage from United
States v. Lomax, 293 F.3d 701 (4th Cir. 2002), suggesting the
weapon had to advance or help forward the crime of violence, and
United States v. Phan, 121 F.3d 149 (4th Cir. 1997), in which
the defendant gave a firearm to a co-conspirator in a planned
robbery.



                                          9
whether      the   handguns       were    actively      employed    during    and   in

relation to the robbery.”); see also Jeffers, 570 F.3d at 566

n.7 (noting an “active employment” instruction is not required

under the current version of § 924(c)).

                                            E.

       The    Eddingtons         also    challenge     the   sufficiency      of    the

evidence to support their conspiracy convictions. In support,

they cite selected testimony by their co-conspirators to suggest

that   even    absent      the    arrest       that   thwarted   their   plans,     the

robbery might not have occurred.

       In order to establish a violation of 18 U.S.C. § 371, the

Government must prove there was an agreement between two or more

people to commit the crime and an overt act in furtherance of

the conspiracy. United States v. Ellis, 121 F.3d 908, 922 (4th

Cir.   1997).      The    evidence      here    was   sufficient   to    support    the

conspiracy convictions. The conspirators engaged in considerable

planning, purchased supplies, and assembled two pipe bombs. The

fact that the conspirators may have had doubts about the likely

success      (or   even    the    advisability)       of   the   plan,   or   had   not

completed all of the preparations, does not call into question

the sufficiency of the evidence.

                                            F.

       Finally, the Eddingtons contend their consecutive sentences

under 18 U.S.C. § 844(h) and 18 U.S.C. § 924(c) are prohibited

                                            10
by     well-settled       double     jeopardy     doctrine               because     their

convictions for these offenses arose out of the same conduct.

The    Eddingtons   did    not     preserve   this     issue        at    trial,    so   we

review for plain error. United States v. Olano, 507 U.S. 725,

731-32 (1993). Because we conclude that Congress intended to

impose consecutive sentences for these offenses, the convictions

and    resulting    consecutive       sentences      do       not    violate        double

jeopardy. See United States v. Smith, 502 F.3d 680, 691 (7th

Cir.     2007)     (affirming,       over     double          jeopardy       objection,

consecutive sentences for convictions under 18 U.S.C. § 844(i)

and 18 U.S.C. § 924(c)(1)(A)); United States v. Strickland, 261

F.3d 1271, 1274 (11th Cir. 2001) (holding consecutive sentences

based on the same course of conduct under § 924(c) and § 844(d)

do not violate double jeopardy), cert. denied, 534 U.S. 1099

(2002); see also United States v. Challoner, 583 F.3d 745, 749-

50 (10th Cir. 2009) (holding, in an appeal from the denial of

post-conviction      relief      under   28   U.S.C.      §    2255,       that    counsel

handling direct appeal from conviction was not ineffective for

failing    to    challenge    on    double    jeopardy        grounds       consecutive

sentences based on convictions under § 844(h) and § 924(c)).




                                         11
                                      II.

     For   the     reasons   set    forth,    we    affirm   the   Eddingtons’

convictions      and   sentences.    In    appeal    no.   08-4799,   we   deny

Timothy Eddington’s motion to relieve counsel.

                                                                      AFFIRMED




                                      12
