                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4690


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LARRY DONNELL FRYE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:07-cr-00247-HEH-1)


Submitted:    February 26, 2009             Decided:   April 27, 2009


Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher J. Collins, Richmond, Virginia, for Appellant. Dana
J. Boente, Acting United States Attorney, Elizabeth C. Wu,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              A jury convicted Larry Donnell Frye of one count of

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

(2006).       The     district    court       sentenced       him     to    250    months’

imprisonment, a seventy-five-month upward variance from the top

of    the   range    suggested    by    the       Sentencing       Guidelines.           Frye

appeals, challenging the sufficiency of the evidence and the

substantive reasonableness of his sentence.                       Finding no merit to

these challenges, we affirm.

              We review the district court’s decision to deny a Fed.

R. Crim. P. 29 motion for judgment of acquittal de novo.                            United

States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).                             Where,

as    here,   the    motion    was     based       on   a    claim    of    insufficient

evidence, “[t]he verdict of a jury must be sustained if there is

substantial     evidence,      taking     the      view     most     favorable      to    the

Government, to support it.”             Glasser v. United States, 315 U.S.

60,    80   (1942).      Substantial         evidence        is    evidence       which    “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).             In evaluating the sufficiency of the

evidence,     this    court    does    not       review     the   credibility       of    the

witnesses and assumes that the jury resolved all contradictions

in the testimony in favor of the Government.                          United States v.

                                             2
Sun, 278 F.3d 302, 313 (4th Cir. 2002).                    In addition, the court

considers       circumstantial        and    direct    evidence,    and   allows     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).                      The testimony

of a single witness may be sufficient to support a conviction,

even    if    that    witness    is    an    accomplice,     co-defendant,      or    an

informer.        United States v. Wilson, 115 F.3d 1185, 1189-90 (4th

Cir. 1997).

               On February 21, 2006, a masked man robbed a Wachovia

Bank branch on West Cary Street in Richmond, Virginia.                               The

robber       jumped   over    the     bank’s      teller   counter,    demanded      and

grabbed money from the teller drawers, and pointed a gun at and

threatened to kill bank employees.                    A witness walking that day

on a sidewalk near the bank heard a “pop” and observed a man

standing in a nearby parking lot enveloped in a cloud of red

smoke and throwing money from his shirt onto the ground.                             The

man    then    fled   between       two     nearby    apartment    buildings.        Law

enforcement officials investigating the robbery recovered from

the    ground    near   the     bank      clothing    as   well   as   United   States

currency, some of which stained with red dye.                           DNA analysis

revealed that Frye could not be eliminated as a contributor to

the DNA found on the recovered clothes.



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                 The Government also presented the testimony of Lamont

McCord, a convicted felon, who testified that Frye admitted to

robbing the Wachovia bank and described to McCord jumping over

the teller counter, grabbing money and placing it in his pants,

and that upon leaving the bank, a dye packet exploded and he

changed his clothes in a alleyway.                 McCord also testified that

Frye bragged that he would “beat” the charge against him because

the bank tellers could not identify him and because one of his

pieces of clothing contained more than one set of DNA.                          Frye

denied ever robbing the bank.

                 On     appeal,   Frye    contends     that    the   evidence       is

insufficient to support his conviction because the Government

failed to introduce evidence of the Wachovia bank’s status as an

institution insured by the Federal Deposit Insurance Corporation

(“FDIC”).             He also asserts that McCord’s testimony, the only

direct evidence linking him to the robbery, is incredible.

                 To sustain a conviction for armed bank robbery under

18 U.S.C. § 2113(a), (d), the Government was required to prove

that       the   institution      from   which   the   money   was   stolen   was   a

“bank” as that term is defined in 18 U.S.C. § 2113(f). *                         See


       *
           18 U.S.C. § 2113(f) provides:

     As used in this section the term “bank” means any
     member bank of the Federal Reserve System, and any
     bank, banking association, trust company, savings
(Continued)
                                            4
United States v. Gallop, 838 F.2d 105, 111 (4th Cir. 1988);

United States v. Wingard, 522 F.2d 796, 797 (4th Cir. 1975).      At

trial, the parties entered into the following stipulation, which

was signed by counsel for Frye and counsel for the Government,

read to the jury, and received into evidence without objection:

     Comes now the United States of America by its counsel,
     and [Frye] by his counsel, respectfully state and
     hereby stipulate the following facts are true and
     correct:
     Stipulation Number 1. On or about February 21, 2006,
     the Wachovia Bank at 3201 West Cary Street, Richmond,
     Virginia, was a bank, as that term is defined in Title
     18 of the United States Code, Section 2113(f), and
     that the deposits therein were insured by the Federal
     Deposit Insurance Corporation, or FDIC.
     Parties further stipulate that at least $3,907.38 in
     U.S. currency was taken from a person in the presence
     of another, on this date, and at this location.

The express language of the stipulation shows Frye’s agreement

that the Wachovia bank was a “bank” as that term is defined in

18 U.S.C. § 2113(f).   Frye makes no attempt to invalidate the

stipulation by showing, for instance, that he entered into it

inadvertently or that he was not competent to make it.         See




     bank, or other banking institution organized or
     operating under the laws of the United States,
     including a branch or agency of a foreign bank (as
     such terms are defined in paragraphs (1) and (3) of
     section 1(b) of the International Banking Act of
     1978), and any institution the deposits of which are
     insured by the Federal Deposit Insurance Corporation.




                                5
United States v. Reedy, 990 F.2d 167, 169 (4th Cir. 1993).                          By

failing to dispute the stipulation’s validity, he has abandoned

any basis for challenging the stipulation’s evidentiary value as

to its stipulated elements.          See id.

             Frye’s challenge to the sufficiency of the evidence

on the basis of the credibility of witness McCord also fails

because witness credibility is not subject to appellate review.

See Sun, 278 F.3d at 313.          As evidenced by its finding of guilt,

the jury resolved any conflicts in testimony in favor of the

Government     and    determined     the       Government’s     witnesses      to   be

sufficiently         credible      and         otherwise      found         sufficient

circumstantial and direct evidence of guilt.                   Our review of the

record convinces us that the jury heard sufficient evidence to

find Frye guilty as charged.

           Frye also challenges the substantive reasonableness of

his   sentence.       After     United   States     v.     Booker,    543    U.S.   220

(2005), a sentence is reviewed for reasonableness, utilizing an

abuse of discretion standard of review.                  Gall v. United States,

128 S. Ct. 586, 597 (2007).                    The first step in this review

requires this court to ensure that the district court committed

no significant procedural error, such as improperly calculating

the Guidelines range.         United States v. Evans, 526 F.3d 155, 161

(4th Cir. 2008).       Frye claims no procedural error.



                                           6
            This         court        next         considers          the         substantive

reasonableness of the sentence imposed, taking the totality of

the circumstances into account.                    Id. at 161-62.            Although this

court may presume that a sentence within the Guidelines range is

reasonable,       it    may     not     presume     a    sentence       outside         of    the

Guidelines range is unreasonable.                   Gall, 128 S. Ct. at 597.                   In

reviewing a sentence outside of the Guidelines range, we must

consider    “whether       the    sentencing        court      acted    reasonably           both

with respect to its decision to impose such a sentence and with

respect    to    the    extent     of    the   divergence        from       the   sentencing

range.”     United States v. Hernandez-Villanueva, 473 F.3d 118,

123 (4th Cir. 2007) (citation omitted).

            This court will find a sentence to be unreasonable if

the    sentencing        court    “provides         an   inadequate          statement         of

reasons or relies on improper factors in imposing a sentence

outside a properly calculated sentencing range.”                                  Id.         The

court, however, must give due deference to the district court’s

decision that the 18 U.S.C. § 3553(a) (2006) factors justify the

sentence.       See Gall, 128 S. Ct. at 597; Evans, 526 F.3d at 162.

Even if this court would have imposed a different sentence, this

fact   alone     will    not     justify      vacatur     of    the    district         court’s

sentence.       Evans, 526 F.3d at 162.

            Our        review    of     the    record     convinces          us    that       the

district court’s 250-month variance sentence was substantively

                                               7
reasonable.        The     district       court    considered       the    parties’

arguments    and   engaged      in    a    meaningful     articulation        of   its

consideration of the 18 U.S.C. § 3553(a) factors supporting the

seventy-five-month         upward     variance.           Notably,      the     court

thoroughly      reviewed     Frye’s       extensive      criminal    history       and

accurately      highlighted      Frye’s        history     of   assaultive         and

threatening behavior.

            Accordingly, we affirm the district court’s judgment.

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




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