UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 99-4266
JERMAINE JERRELL SIMS, a/k/a Justice,
a/k/a Jus,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-98-45)

Argued: October 29, 1999

Decided: January 12, 2000

Before WILKINS and WILLIAMS, Circuit Judges, and
Gerald Bruce LEE, United States District Judge
for the Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSO-
CIATES, Richmond, Virginia, for Appellant. Kenneth E. Melson,
Assistant United States Attorney, Steven John Mulroy, Special Assis-
tant United States Attorney, Alexandria, Virginia, for Appellee. ON
BRIEF: Melanie H. Moore, GERALD T. ZERKIN & ASSO-
CIATES, Richmond, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Jermaine Jerrell Sims was convicted on six counts for his role in
a bank robbery that resulted in the death of a bank teller. Pursuant to
his conviction under 18 U.S.C.A. § 2113(a) and (e) (West Supp.
1999), the district court sentenced Sims to the statutory minimum of
life imprisonment. Prior to sentencing, Sims moved for a new trial on
the basis of newly discovered evidence. The district court denied the
motion for a new trial because the newly proffered evidence was
cumulative of that presented at trial and insufficient to produce an
acquittal. Sims moved for reconsideration of the court's denial, offer-
ing additional newly discovered evidence, and the district court again
rejected Sims's argument. On appeal, Sims contends that his life sen-
tence without the possibility of parole is so disproportionate to his
crime that it violates the Eighth Amendment prohibition against cruel
and unusual punishment and that the district court erred in denying
his motion for a new trial. Finding no merit to Sims's arguments, we
affirm his conviction and sentence.

I.

On January 30, 1997, two armed men, LaFawn Bobbitt and Rashi
Jones, entered a NationsBank in Richmond, Virginia. Shortly after
entering the bank, the men opened fire, killing a bank teller and
wounding three others. Bobbitt and Jones fled the scene with $10,000
from the bank. The two were later tried and convicted for their crimes
and each received a life sentence without the possibility of parole.

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Soon after the investigation began, the police began to suspect that
Jermaine Sims was involved in the bank robbery. Two of the semiau-
tomatic weapons used in the slaying, a DPMS A-15 and a TEC-DC9,
were determined to have been purchased by Sims. 1 In addition,
Sims's fingerprints were found on a can of lighter fluid that Bobbitt
and Jones left behind at the bank. Because of this evidence, Sims was
arrested for the robbery on February 11, 1997. Although investigators
later determined that Sims was not one of the two actual perpetrators
of the bank robbery and identified Bobbitt and Jones as the gunmen,
Sims's involvement remained clear.

Following a bench trial in the United States District Court for the
Eastern District of Virginia, the district court determined that Sims
actively participated in the planning of the bank robbery. Sims pur-
chased the A-15 and TEC-DC9 just days before the robbery, as well
as the ammunition used in those weapons, and three cans of lighter
fluid that were to be used in torching the bank after the robbery. The
district court also found that, after the robbery, Sims was responsible
for controlling the stolen money and providing his girlfriend's college
dormitory room as a safehouse for Bobbitt and Jones.

At trial, Sims attempted to demonstrate that he was not involved
in the robbery, its planning, or the related events following the rob-
bery. The evidence he presented included testimony from three wit-
nesses concerning statements made by Bobbitt and Jones prior to their
arrest. Angela Elliot, the sister of Sims's girlfriend, testified that
while she and Bobbitt were watching a television news report of
Sims's arrest, Bobbitt "said that it was crazy, he didn't know why
they would arrest [Sims]. And said that [Sims] . . . didn't do it." (J.A.
at 132.) Latisha Donaldson testified that while she watched a similar
news broadcast with Jones, Jones said that Sims"didn't do it. He just
purchased the guns." (J.A. at 419.) Finally, Dibone Toone testified
that he and Jones also watched a news account of Sims's arrest
together, during which Jones said, "I don't know what they locked
him up for. He didn't have nothing to do with it." (J.A. at 420.) The
trial judge expressly noted that the only probative significance he
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1 Although neither of these firearms was used to kill the bank teller, the
A-15 was used to seriously wound a security guard. The TEC-DC9
apparently malfunctioned when Jones attempted to fire it.

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attributed to these three witnesses' testimony was that Sims was not
in the bank when the robbery took place.

Sims was convicted on six counts related to the bank robbery,
including Count Two, which was for aiding and abetting a bank rob-
bery that resulted in death. See 18 U.S.C.A.§ 2113(a) and (e) (West
Supp. 1999); 18 U.S.C.A. § 2 (West 1969). After his trial, Jones
moved pursuant to Rule 33 of the Federal Rules of Criminal Proce-
dure for a new trial on the basis of newly discovered evidence. This
evidence consisted of testimony from his brother, Javar Sims, and a
friend, Jamaal McCall. These two individuals were prepared to testify
that Bobbitt told them that Sims had nothing to do with the robbery.
The trial judge denied the motion for a new trial because the new evi-
dence was cumulative of Elliot's, Donaldson's, and Toone's trial tes-
timony and was not likely to produce an acquittal. Undeterred, Sims
moved for reconsideration of the denial of a new trial and this time
supported his motion with a more complete statement purportedly
exculpating him from the crime. In this motion, Sims proffered state-
ments from another witness to the effect that Bobbitt stated that Sims
"did not know anything about the robbery before it occurred." (J.A.
at 469.) Again, the district court denied the motion on the ground that
this newly discovered evidence was cumulative of statements consid-
ered at trial and would not produce an acquittal. The district court
noted that the evidence was "not sufficient to produce an acquittal in
light of the substantial circumstantial evidence supporting the defen-
dant's prior knowledge of the robbery." (J.A. at 480.)

The district court sentenced Sims to life imprisonment plus 120
months. The life sentence was imposed because it was the mandatory
minimum under 18 U.S.C.A. § 2113(a) and (e). 2
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2 We note that the district court also sentenced Sims to life imprison-
ment for his conviction on Count Four for causing the death of another
by the use of a firearm while engaged in a crime of violence, under 18
U.S.C.A. § 924(j)(1) (West Supp. 1999) and§ 2 (West 1969). Unlike 18
U.S.C.A. § 2113(a) and (e) (West Supp. 1999), however, § 924(j) does
not require courts to impose a minimum sentence of life imprisonment.
Because the district court clearly acknowledged that it was statutorily
constrained to impose a life sentence for Sims's conviction on Count
Two for violating § 2113(a) and (e), we focus on the constitutionality of
his sentence under that statute.

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II.

Congress has determined that when one kills another during the
commission of a bank robbery, the offender shall be sentenced to life
imprisonment or death. See 18 U.S.C.A. § 2113(a) and (e) (West
Supp. 1999). It has also declared that one who aids or abets a crime
shall be punished as a principal. See 18 U.S.C.A. § 2 (West 1969).
Sims challenges his sentence of life imprisonment without parole
under these statutes on the ground that it violates the Eighth Amend-
ment prohibition against cruel and unusual punishment because it is
disproportionate to his crime. We disagree.

"[A] criminal sentence must be proportionate to the crime for
which the defendant has been convicted." Solem v. Helm, 463 U.S.
277, 290 (1983). We have held that "outside the context of a capital
sentence a proportionality review is necessary only with respect to
sentences of life imprisonment without the possibility of parole."
Beverati v. Smith, 120 F.3d 500, 504-05 (4th Cir. 1997).

In Solem, the Supreme Court announced three guiding factors to
consider in determining whether a sentence is proportional to the
crime: "(i) the gravity of the offense and the harshness of the penalty;
(ii) the sentences imposed on other criminals in the same jurisdiction;
and (iii) the sentences imposed for commission of the same crime in
other jurisdictions." Solem, 463 U.S. at 292.

In Harmelin v. Michigan, 501 U.S. 957 (1991), the Supreme Court
revisited its holding in Solem, and a majority of justices either com-
pletely rejected the use of proportionality review for non-capital sen-
tences, see id. at 965 (Scalia, J.), or believed that the second and third
factor set forth in Solem need only be considered "in the rare case in
which a threshold comparison of the crime committed and the sen-
tence imposed leads to an inference of gross disproportionality," see
id. at 1005 (Kennedy, J., concurring).3
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3 We have previously suggested that Solem will continue to apply in the
wake of Harmelin because a majority of justices did not expressly over-
rule Solem. See United States v. Kratsas, 45 F.3d 63, 67 (4th Cir. 1995).
Judge Niemeyer wrote a separate opinion in Kratsas, however, in which

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We have no difficulty concluding that this is not such a rare case
of gross disproportionality. Sims received a life sentence for actively
participating in the planning of a brutal, deadly bank robbery. Sims
purchased two semiautomatic firearms for Bobbitt and Jones to use
in the commission of the robbery. He also furnished cans of lighter
fluid that the robbers intended to use in setting the building ablaze.
There is no question that Sims played an integral role in the events
that foreseeably resulted in the death of one individual and the
wounding of three others. A sentence of life imprisonment is not
grossly disproportionate to this violent crime.

Moreover, were we to consider the remaining Solem factors, we
would be further assured that the sentence is not constitutionally
infirm. A life sentence for this crime is consistent with other sen-
tences found in the United States Sentencing Guidelines for crimes,
such as robbery, in which death results. See, e.g., U.S. Sentencing
Guidelines Manual (Nov. 1998), Appendix A (applying Guideline
2A1.1 for violations of 18 U.S.C. § 1111(a)). Thus, Sims's sentence
satisfies the second Solem factor. As to the third factor, we have con-
strued that factor to require a survey of sentences of similar crimes
under the laws of states within this Circuit. See United States v.
D'Anjou, 16 F.3d 604, 613 (4th Cir. 1994) (citing statutes from North
Carolina, South Carolina, and Virginia that impose similarly severe
sentences for narcotics crimes like the one at issue there). Here, the
sentence is proportionate to ones imposed in states within this Circuit
for similar crimes involving an accessory's role in violent crimes that
result in death. See, e.g., Va. Code Ann. §§ 18.2-10, 18.2-18, 18.2-32
(Michie 1996 & Supp. 1999); Md. Ann. Code art. 27,§§ 38, 410, 412
(1996 & Supp. 1998); N.C. Gen. Stat. §§ 14-5.2, 14-17 (Supp. 1998).
_________________________________________________________________
he took issue with this interpretation of the significance of Harmelin,
noting that a majority of justices clearly narrowed the Solem test. See
Kratsas, 45 F.3d at 69-70 (Niemeyer, J., concurring). Judge Niemeyer
concluded that the majority's reliance on the original Solem test was
improper and that because Harmelin was dispositive of the instant case,
any indication by the majority that Solem survived Harmelin unscathed
was dicta. See id. Because it is not essential to our holding today, we
need not determine the proper precedential value to place on Kratsas's
suggestion concerning the continuing validity of the original Solem test;
we simply recognize this current uncertainty.

                    6
III.

Sims next contends that the district court erred in refusing to grant
his motion for a new trial. We review the district court's decision not
to grant a new trial for an abuse of discretion. See United States v.
Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

In order to grant a new trial under Rule 33 of the Federal Rules of
Criminal Procedure based upon newly discovered evidence, the dis-
trict court must determine that: (1) the evidence has been discovered
since the trial; (2) the moving party acted with the appropriate amount
of diligence; (3) the evidence is not "merely cumulative or impeach-
ing;" (4) the evidence is "material to the issues involved;" and (5) the
evidence demonstrates "that, on a new trial, . . . [it] would probably
produce an acquittal." See id. "Without ruling out the possibility that
a rare example might exist, we have never allowed a new trial unless
the defendant can establish all five elements." Id.

In this case, the district court determined that the evidence Sims
presented in support of his motion for a new trial was cumulative of
that presented at trial and unlikely to produce an acquittal. Indeed, the
statements proffered after trial were consistent with the testimony of
three witnesses at trial and tended to suggest only that Sims was not
present in the bank at the time of the robbery. To the extent that the
newly discovered evidence proffered in support of his motion for
reconsideration did not overlap with prior testimony presented at trial,
the district court expressly noted that "in light of the substantial cir-
cumstantial evidence supporting [Sims's] prior knowledge of the rob-
bery," this new evidence was not sufficient to produce an acquittal.
(J.A. at 480.) The record clearly supports this ruling. In addition, we
note that because the district court judge was the trier-of-fact in this
case, he was "in a unique position to know whether [new] evidence
would have affected the outcome." Government of the Virgin Islands
v. Lima, 774 F.2d 1245, 1251 (3d Cir. 1985).

We find that the district court's decision not to grant a new trial in
this case was sound, and not an abuse of discretion.

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IV.

Having carefully considered Sims's arguments in his brief and at
oral argument, we conclude that they lack merit. 4 The judgment of the
district court is

AFFIRMED.
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4 We have also considered the arguments Sims raises in his pro se sup-
plemental brief and similarly conclude that they are without merit.

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