                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                       FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                U.S.
                        ________________________ ELEVENTH CIRCUIT
                                                             SEPT 30, 2010
                               No. 10-10937                   JOHN LEY
                           Non-Argument Calendar                CLERK
                         ________________________

                  D.C. Docket No. 1:08-cr-00209-CC-CCH-2

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                   versus

MARCUS SIMS,
a.k.a. Lil Boo,

                                                           Defendant-Appellant.

                        ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                             (September 30, 2010)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Marcus Sims appeals his convictions for robbery in violation of the Hobbs
Act, 18 U.S.C. §§ 2, 1951(a), and carrying a firearm during that robbery, id. §§ 2,

924(c). Sims challenges the sufficiency of the evidence to support his convictions

and the refusal of the district court to give his proposed jury instructions on

robbery and aiding and abetting. We affirm.

      The district court did not err by denying Sims’s motion for a judgment of

acquittal. Sims argues he could not be convicted of robbery or the related firearm

offense because the government failed to prove that he stole property “from the

person or in the presence of another . . . by means of actual or threatened force . . .

or of anyone in his company at the time of the taking or obtaining,” 18 U.S.C. §

1951(b)(1), but we disagree. Aided by the actual force used by Maurice Jenkins,

his cohort, Sims was able to steal a package both in the presence of a delivery

driver and when the driver was in the company of a private security guard. See id.

§§ 2, 1951(b)(1); United States v. Hamblin, 911 F.2d 551, 557–59 (11th Cir.

1990). The driver of a delivery truck confronted Sims and Jenkins after seeing

them place packages stolen from the truck into their vehicle. The driver tried to

wrestle a package away from Jenkins while Sims struggled to squeeze a large

package in the back seat of the vehicle. When a security guard came to assist the

delivery driver, Jenkins used one of the two guns that he and Sims had concealed

in the pockets behind their seats in their vehicle to shoot the security guard. The

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driver of the delivery truck, the security guard, and Jenkins all testified for the

government, as did local officers involved in the investigation of the crime.

Ample evidence supports Sims’s convictions.

      The district court also did not abuse its discretion by refusing to give Sims’s

proposed jury instructions. A defendant is entitled to have his proposed jury

instruction read to the jury only if the instruction provides an accurate statement of

the law, the instruction is not otherwise included in the jury charge, and the failure

to give the instruction “‘substantially impaired the defendant’s ability to present an

effective defense.’” United States v. Culver, 598 F.3d 740, 751 (11th Cir. 2010)

(quoting United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005)). Sims’s

proposed instruction on robbery, which stated that “[f]orce or violence that occurs

during the escape from a theft does not transform the original theft crime into a

robbery,” is not supported by our caselaw, was inconsistent with evidence that the

shooting occurred during the robbery, and suggests incorrectly that Jenkins’s

skirmish with the delivery driver could not constitute actual force. The instruction

given by the district court tracked the language of the statute, conveyed accurately

the law, and distinguished between the offenses of theft and robbery. Sims’s

proposed instructions on aiding and abetting, which would have added language

that Sims had to share the same intent as Jenkins, was repetitive of information in

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the oral charge. The district court could phrase the jury instruction in a manner to

convey accurately the law about aiding and abetting. See United States v. Lively,

803 F.2d 1124, 1128 (11th Cir. 1986). The omission of Sims’s proposed language

did not impair his ability to convey to the jury his defense that he aided and

abetted Sims solely in a scheme to steal property.

      We AFFIRM Sims’s convictions.




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