     Case: 10-11157     Document: 00511578452         Page: 1     Date Filed: 08/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 22, 2011
                                     No. 10-11157
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DWAYNE ALLEN VALENTINE,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-90-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Dwayne Allen Valentine appeals his jury-trial conviction and sentence for
bank robbery by intimidation, in violation of 18 U.S.C. § 2113(a). Valentine was
sentenced within the advisory Guidelines sentencing range of 210-240 months
(the original upper end of the range, 262 months, was reduced to 240 months,
the statutory maximum) to the statutory-maximum sentence of 240 months’
imprisonment. He contends: the Government failed to produce sufficient
evidence of intimidation to support his conviction; his sentence was

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-11157     Document: 00511578452      Page: 2   Date Filed: 08/22/2011

                                   No. 10-11157

substantively unreasonable; and the district court erred by ordering his sentence
to run consecutively with any sentence he might receive on his pending state-
court charge.
      For claiming the Government failed to establish intimidation, Valentine
asserts there was insufficient evidence showing that an ordinary person could
reasonably infer a threat of bodily harm. Along that line, he maintains he did
not make any comments that could be construed as threats and his actions did
not threaten bodily harm.
      Because Valentine moved for judgment of acquittal at the close of the
Government’s case and at the close of evidence, he preserved his sufficiency-of-
the-evidence claim. E.g., United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.
2000). Accordingly, the standard of review is “whether, considering all the
evidence in the light most favorable to the verdict, a reasonable trier of fact could
have found that the evidence established guilt beyond a reasonable doubt”. Id.
(citation omitted).
      Under 18 U.S.C. § 2113(a), the Government was required to establish
beyond a reasonable doubt, inter alia, that Valentine took the money by
intimidation. 18 U.S.C. § 2113(a); United States v. McCarty, 36 F.3d 1349, 1357
(5th Cir. 1994). In this context, intimidation “means to make fearful or to put
into fear”.     Id.   (citation and internal quotation marks omitted).           For
intimidation, the Government was required to show “an ordinary person in the
teller’s position would feel a threat of bodily harm from” Valentine’s conduct. Id.
(citation omitted). “Evidence that [Valentine’s] acts did induce fear in [the teller]
is probative of whether his acts were objectively intimidating.” Id. (citation and
internal quotation marks omitted). In that regard, the Government was not
“required to show either an express verbal threat or a threatening display of a
weapon”. Id. (citation and internal quotation marks omitted).
      Relevant evidence was that Valentine, inter alia: presented a note to a
bank teller, informing her that he was engaged in a “bank robbery”; started

                                         2
   Case: 10-11157    Document: 00511578452     Page: 3     Date Filed: 08/22/2011

                                  No. 10-11157

speaking louder; demanded money from the teller; leaned in towards her; told
her which bills to give him; and repeatedly cursed at her. The teller testified
that Valentine’s actions: frightened her; caused her to be shaky, sweaty, and her
heart to start pounding; and made her fear for her life. Accordingly, viewing the
evidence in the light most favorable to the verdict, a reasonable juror could have
found, beyond a reasonable doubt, that an ordinary person in the teller’s position
would have felt a threat of bodily harm from Valentine’s acts.
      For his substantive-unreasonableness claim regarding his sentence,
Valentine contends the district court erred in balancing the 18 U.S.C. § 3553
sentencing factors in imposing 240 months’ imprisonment. Along that line, he
maintains: his advisory Guidelines sentencing range would have been 77-96
months’ imprisonment without the career-offender enhancement; and he was not
a career offender because, according to Valentine, his present offense was only
legally, not actually, a crime of violence.
      Although, post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the Guidelines sentencing range
for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38,
51 (2007). In that respect, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.              E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
      Valentine does not present a procedural challenge to his sentence. When,
as here, the district court imposes a sentence within a properly-calculated
Guidelines sentencing range, we accord great deference to the sentence and
apply a rebuttable presumption of reasonableness. Gall, 552 U.S. at 51.
      Although Valentine’s relatively nonviolent conduct was arguably a
mitigating factor, his long series of prior convictions for serious offenses,
interrupted only by a lengthy term of incarceration, was an aggravating factor.

                                         3
   Case: 10-11157   Document: 00511578452      Page: 4   Date Filed: 08/22/2011

                                  No. 10-11157
See United States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006) (upholding
upward deviation based on defendant’s criminal record). The district court
properly balanced the mitigating and aggravating factors and determined that
a sentence at the high end of the advisory Guidelines sentencing range was
appropriate. Accordingly, Valentine has failed to rebut the presumption of
reasonableness attached to his within-Guidelines sentence.
      Finally, Valentine maintains the district court’s ordering his sentence to
run consecutively with any sentence he might receive on his pending state-court
charge (for making a terrorist threat to his girlfriend the day after the robbery)
was prohibited by 18 U.S.C. § 3584 (permits concurrent or consecutive sentences
in context of multiple sentences of imprisonment). As Valentine concedes, this
assertion is foreclosed by United States v. Brown, 920 F.2d 1212, 1216-17 (5th
Cir. 1991), abrogated on other grounds, United States v. Candia, 454 F.3d 468,
472-73 (5th Cir. 2006), in which our court held a district court may order a term
of imprisonment to run consecutively to a yet-to-be-imposed state sentence. See
United States v. Setser, 607 F.3d 128, 131-32 (5th Cir. 2010), cert. granted, 2011
WL 2297806 (13 June 2011) (No. 10-7387). Although the Supreme Court has
granted a writ of certiorari in Setser, we are bound to follow our precedent. See
United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).
      AFFIRMED.




                                        4
