UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4364

WILLIAM ALAN WHITMER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CR-97-60-F)

Submitted: March 9, 1999

Decided: August 11, 1999

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael R. Ramos, RAMOS & LEWIS, L.L.P., Shallotte, North Car-
olina, for Appellant. Janice McKenzie Cole, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, John S. Bowler,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

William Alan Whitmer appeals his jury conviction and resulting
sentence for bank robbery in violation of 18 U.S.C.§ 2113(a) (1994).
Finding no error, we affirm.

On December 23, 1996, William Dillard Irby entered the United
Carolina Bank in Wilmington, North Carolina, and robbed teller Fran-
cis Millis of $1666.85. Whitmer served as Irby's getaway driver. On
January 2, 1997, Irby entered the Cooperative Bank for Savings in
Wallace, North Carolina, and robbed teller Amanda Hanchey and
other tellers of $10,378. Whitmer was waiting for Irby with the car
in a nearby parking lot, but Irby was apprehended walking away from
the bank.

At trial, Millis testified that when Irby came up to her window he
said, "Yes, you are being robbed. Don't say anything; I will kill you.
Give me all your large bills." Millis stated that Irby spoke softly in
a low tone and never raised his voice. She also stated that he did not
make any threatening gestures and that she did not see a weapon. Mil-
lis further testified that it was a very frightening experience and that
she feared Irby might come after her because she knew what he
looked like.

Hanchey testified that when Irby approached her window, he
handed her a bag and told her to fill it up and that he would kill her
if she pulled the alarm. When Hanchey had emptied her cash drawer,
Irby instructed her to pass the bag down the teller line. She also testi-
fied that Irby did not shout, spoke in a low voice, made no threatening
gestures, and did not display a weapon. Hanchey also stated that for
months afterwards, she was too afraid to wait on customers alone and
required another teller to stand with her. Two other tellers testified
that they did not hear Irby make any threats.

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Irby testified that in December 1996, he traveled to North Carolina
from Maryland, where he was wanted for a bank robbery. He stayed
with David Leveille and met Leveille's sister, Rebecca Leveille, and
her fiance, Whitmer. Irby testified that he and Whitmer began com-
paring their criminal histories and discussing schemes to make
money. Whitmer told Irby that his specialty was commercial burgla-
ries and that he used radio scanners to monitor police channels to
avoid apprehension. Irby felt that such a crime would take too much
time and he and Whitmer decided on bank robbery to obtain some
money.

Prior to the first robbery, Irby stayed with Whitmer and Rebecca.
Whitmer then programmed his scanner for the Wilmington police fre-
quencies. On the morning of the robbery, Whitmer called in sick and
borrowed Rebecca's car. Whitmer then dropped Irby off at the bank
and waited for him in a nearby parking lot. After Irby robbed the
bank, Whitmer drove him away and Irby shared the stolen money
with Whitmer. For the second bank robbery, Irby testified that he
instructed Whitmer to park two blocks from the bank. Irby testified
that when he began walking away from the bank he heard sirens and
saw Whitmer drive away. Irby was apprehended on the sidewalk. Irby
further testified that he did not have a driver's license, a car, or the
ability to drive.

Detective Thomas Brown of the Wallace Police Department testi-
fied that he apprehended Irby while Irby was walking away from the
bank and that Irby denied that anyone else was involved in the rob-
bery. However, Irby later told Brown and FBI Special Agent Steven
Smith that Whitmer was the getaway driver and that Whitmer used
scanners to avoid being caught. Irby then denied knowing Whitmer
but later again stated Whitmer was the driver.

Another witness, Judy Ryan, Rebecca Leveille's mother, testified
that Whitmer confessed his involvement with the bank robberies to
her on two occasions. Rebecca Leveille testified that Whitmer had
access to her car on the days of each robbery, that the scanner recov-
ered from her car belonged to Whitmer, and that Whitmer told her to
testify that he and Irby had never met. Further testimony established
that Whitmer gave a detailed description of his involvement in the

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robberies to a fellow inmate where he was being housed after his
arrest.

On appeal, Whitmer asserts that the district court erred in refusing
to instruct the jury on the lesser included offense of bank larceny. We
review the district court's jury instruction decisions for abuse of dis-
cretion. See United States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995).
A defendant is entitled to an instruction on a lesser included offense
only when the evidence would support a conviction of that offense.
See Keeble v. United States, 412 U.S. 205, 208 (1973). In order to
receive the instruction, "the proof of the element that differentiates the
two offenses must be sufficiently in dispute that the jury could ratio-
nally find the defendant guilty of the lesser offense but not guilty of
the greater offense." United States v. Walker , 75 F.3d 178, 180 (4th
Cir. 1996). For an element to be placed "sufficiently in dispute" so as
to warrant a lesser included offense instruction, either "the testimony
on the distinguishing element must be sharply conflicting, or . . . the
conclusion as to the lesser offense must be fairly inferable from the
evidence presented." Id. (citation omitted).

The distinguishing element between bank larceny and bank robbery
is the use of force or intimidation. Id. The evidence presented in this
case established that Irby threatened to kill the tellers he robbed. Such
evidence is sufficient to establish the intimidation element necessary
for a bank robbery conviction. See United States v. Wagstaff, 865
F.2d 626, 627 (4th Cir. 1989) (evidence is sufficient to sustain a con-
viction on intimidation element if the defendant's conduct was rea-
sonably calculated to produce fear). Because the evidence of
intimidation was not "sharply conflicting," we find the court's refusal
to instruct the jury on bank larceny was not an abuse of discretion.

Whitmer next asserts that the evidence was insufficient to support
his conviction for bank robbery. We must affirm Whitmer's convic-
tion "if there is substantial evidence, taking the view most favorable
to the Government, to support it." See Glasser v. United States, 315
U.S. 60, 80 (1942). Viewed in the light most favorable to the Govern-
ment, the evidence at trial showed that Whitmer jointly undertook to
rob both banks with Irby. Testimony established that Whitmer served
as Irby's getaway driver and that Whitmer admitted his involvement

                     4
in the bank robberies. We therefore find the trial evidence sufficient
to sustain his bank robbery conviction.

Whitmer next asserts that the court erred by not reducing his
offense level two levels for being a minor participant pursuant to U.S.
Sentencing Guidelines Manual § 3B1.2 (1998). The evidence at trial
showed that Whitmer was involved in the planning of the robberies,
that he shared in the proceeds of the robbery, and that he was integral
to Irby's escape. Though he may have played a less direct role in the
robberies than Irby, he is not entitled to a reduction under USSG
§ 3B1.2 because his actions were essential to the offense. See United
States v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991). Thus, the dis-
trict court's denial of a downward adjustment was not clearly errone-
ous.

Whitmer finally asserts that the district court erred by applying a
two-level enhancement for obstruction of justice pursuant to USSG
§ 3C1.1. The presentence report concluded that Whitmer threatened
a witness in a holding cell and that Whitmer tried to make Rebecca
Leveille lie by claiming that Whitmer and Irby did not know each
other. Rebecca Leveille confirmed that Whitmer tried to induce her
to lie when she testified. Whitmer failed to proffer any evidence
showing that the information in the presentence report was unreliable
or inaccurate. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990). Therefore, we conclude that the court did not clearly err by
applying a two-level enhancement for obstruction of justice.

Accordingly, we affirm Whitmer's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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