UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4266

SHELDON LEE JONES,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-97-311-S)

Submitted: July 30, 1999

Decided: August 16, 1999

Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.

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Affirmed in part and vacated in part by unpublished per curiam opin-
ion.

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COUNSEL

Christopher M. Davis, DAVIS & DAVIS, Washington, D.C.; Dennis
M. Hart, Washington, D.C., for Appellant. Lynne A. Battaglia,United
States Attorney, Kathleen O. Gavin, Assistant United Attorney, Balti-
more, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Sheldon Lee Jones appeals from his conviction and sentence for
bank robbery, armed bank robbery, use and carry of a firearm in the
commission of a crime of violence, and aiding and abetting in the
commission of all three offenses in violation of 18 U.S.C.A. §§ 2,
924(c), 2113(a), (d) (West 1994 & Supp. 1999). We affirm in part,
and vacate in part.

Jones first challenges the admission of a statement made during an
interview with an FBI agent that he had never been inside the victim
bank. Although he admits to executing a waiver of rights form, he
contends that the waiver was not voluntary because he was under the
influence of drugs. Relevant to this issue, Jones was arrested on suspi-
cion of the robbery at 2:30 in the morning on August 23, 1997. Five
and a half hours later, he was taken to an interview room where he
was advised of his rights by FBI Special Agent Henry Hanburger.
Hanburger read the rights aloud from the waiver form, and Jones indi-
cated that he understood those rights and agreed to waive them,
whereupon he signed the waiver form. Following this waiver, Jones
denied involvement in the robbery and stated that although he knew
where the bank was located, he had never been inside. Shortly after
this interview, Jones was taken before a federal magistrate where it
was determined that he tested positive for the presence of marijuana.
He thus sought to suppress his statement that he had never been inside
the bank on the ground that it was involuntary due to the effects of
the drug.

The district court heard testimony from FBI Agent Hanburger that
Jones did not appear to be under the influence of any drug during the
waiver and interview. The district court accepted this testimony and
found the waiver valid. Because the presence of marijuana in Jones'
system is the only fact suggestive of an invalid waiver, and because

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the district court made an unreviewable credibility determination
based on Hanburger's testimony that Jones was not impaired, we
affirm as to this claim. See McCrary v. Runyon , 515 F.2d 1082, 1086
(4th Cir.) ("We may not reverse a trier of fact, who had the advantage
of hearing the testimony, on a question of credibility."), aff'd, 427
U.S. 160 (1976).

Jones next contends that the district court erred in allowing testi-
mony of an automobile purchase to come into evidence. The district
court's decision to admit or exclude evidence is reviewed for an abuse
of discretion. See General Elec. Co. v. Joiner , 522 U.S. 136, 141
(1997) (providing standard). Assuming, for the sake of argument, that
Jones properly characterizes this issue as a Fed. R. Evid. 404(b) issue,
we conclude that because the evidence at issue tends to demonstrate
motive, was necessary to show part of the context of the crime, came
directly from the car salesman and was thus reliable, and its probative
value was not substantially outweighed by the risk of unfair prejudice,
that the district court did not abuse its discretion in admitting the evi-
dence. See United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997),
cert. denied, 118 S. Ct. 1572 (1998).

Jones next attacks his conviction for aiding and abetting in the use
and carry of a firearm during a crime of violence. Construing this
claim broadly, we have reviewed the conviction for both sufficiency
of the evidence and a possible jury misinstruction. We conclude that,
taking the evidence in the light most favorable to the Government,
substantial evidence supported the essential elements of the crime.
See Glasser v. United States, 315 U.S. 60, 80 (1942) (providing stan-
dard). Moreover, because the district court's instructions, taken as a
whole, fairly stated the controlling law, we conclude that Jones has
not shown any entitlement to relief on his jury instruction claim. See
United States v. Cobb, 905 F.2d 784, 788 (4th Cir. 1990) (providing
standard).

Jones also contends that the district court erred in enhancing his
offense level by four points under U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(3)(B) (1997), because: (1) there was insufficient evidence
of a serious injury; and (2) the conduct of his co-defendant in injuring
one of the victims should not have been attributed to him. Addressing
the first of these issues, our review of the record leads us to conclude

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that the district court's factual finding that the bank manager sus-
tained serious bodily injuries was not clearly erroneous. See United
States v. Brooks, 957 F.2d 1138, 1148 (4th Cir. 1992) (providing stan-
dard); see also USSG § 1B1.1(j) (defining serious bodily injury). As
far as his relevant conduct challenge, we find no merit to Jones'
apparent argument that USSG § 1B1.3(a)(1)(A), violates due process
because it imposes strict liability on a defendant for his co-
defendant's actions without regard to reasonable foreseeability. More-
over, the record reveals that the district court's determination that
Jones was responsible for the injuries suffered by the bank manager
was not based on USSG § 1B1.3(a)(1)(A), but rather on USSG
§ 1B1.3(a)(1)(B), a provision which Jones does not challenge.

Finally, Jones contends that because the subsections of 18 U.S.C.
§ 2113 constitute greater and lesser included offenses, he cannot be
convicted and sentenced for violation of both § 2113(a) and
§ 2113(d). The Government concurs. We conclude that the parties are
correct and that Jones cannot be sentenced for both bank robbery and
armed bank robbery. See United States v. Amos , 566 F.2d 899, 901
(4th Cir. 1977). Accordingly, we vacate Jones' conviction and sen-
tence for violation of § 2113(a).

We therefore affirm Jones' conviction and sentence for all counts
other than the § 2113(a) charge, and vacate the conviction and sen-
tence for that count. 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 IN PART, VACATED IN PART

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