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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13255
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:12-cr-00256-DHB-BKE-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus


EDDIE ADONIS GARNETT,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 2, 2014)

Before TJOFLAT, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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      Eddie Garnett appeals his conviction for bank robbery by intimidation, in

violation of 18 U.S.C. § 2113(a), and his 120-month sentence. On appeal, Garnett

argues that the district court improperly admitted evidence of witness’ subjective

feelings of intimidation, that the district court should have granted his motion for

judgment of acquittal, and that his above-guideline sentence of 120-months

imprisonment was unreasonable. After careful review, we affirm.

                                          I.

      On October 11, 2012, Garnett entered a bank and demanded money from a

bank teller. The teller did not comply with Garnett’s demand, and so he reached

across the counter and took money from the drawer himself. He then announced

that he needed all the tellers’ money, jumped over the counter, and proceeded to

remove money from several drawers. None of the bank’s employees tried to stop

Garnett because they had been trained to comply during a robbery rather than fight

back. Garnett never brandished a weapon or physically harmed any of the

employees, nor did he verbally threaten to do so if they interfered. After he

finished taking money from the drawers, Garnett leapt back over the counter and

left the bank with more than $5,000.

      The government arrested Garnett shortly after the incident and charged him

with violating 18 U.S.C. § 2113(a), which makes it unlawful for any person to take

money from a bank “by force and violence, or by intimidation.” At trial, the


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government proceeded on the theory that, although Garnett had not used force and

violence to commit the offense, he had used intimidation. To make its case, the

government called several bank employees as witnesses. Each employee explained

her subjective reactions to Garnett’s conduct, over his objection. They testified

that they were “horrified,” “very scared,” and “shaking” throughout the ordeal.

The jury also saw video and photographs of the incident.

      Based on this evidence, the jury convicted Garnett. Garnett moved for

judgment of acquittal, asserting that the evidence did not support the conviction.

The district court denied Garnett’s motion, noting that he did not contest that he

“committed the physical acts of reaching over the counter and grabbing money

from the teller drawer, leaping over the counter into the teller’s work space, roving

back and forth behind the teller counter in very close proximity to the two tellers

behind the counter, taking money from several teller drawers, and then leaping

back over the counter in close proximity to the branch manager.”

      Under the United States Sentencing Guidelines, Garnett had an offense level

of 22 and a criminal history category of IV, which corresponded to a guideline

range of 63- to 78-months imprisonment. However, the Presentence Investigation

Report (PSR) recommended a 120-month sentence because the guideline range did

not adequately account for Garnett’s lengthy criminal history. See United States

Sentencing Guidelines (USSG) § 4A1.3. Garnett’s prior convictions included


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another conviction for bank robbery in 1997 and one for bank theft in 2006, for

which he was still on supervised release at the time he committed this offense.

Both of these prior convictions increased Garnett’s offense level. Other similar

adult convictions which did not increase his offense level under the Guidelines

included three convictions for theft by taking and one burglary conviction.

      The government recommended that the district court vary the sentence

upward even higher, to the statutory maximum penalty of 240 months. See 18

U.S.C. § 2113(a). The district court declined to go so far, but did agree that an

upward variance was appropriate. To that end, the district court sentenced Garnett

to 120 months, as the PSR recommended.

      Garnett raises three arguments on appeal. First, he argues that the district

court improperly admitted irrelevant evidence of the bank employees’ subjective

response to Garnett’s conduct. Second, he argues that the evidence was

insufficient to prove that he committed the offense by intimidation. Finally, he

argues that the upward variance was unjustified, because his criminal history

category adequately accounted for his prior offenses.

                                         II.

      It is helpful to address Garnett’s challenges to both the admissibility and the

sufficiency of the evidence together. We review a district court’s decision to admit

evidence over a defendant’s objection for abuse of discretion, United States v.


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Jiminez, 

, 1249 (11th Cir. 2000), and the denial of a motion for a

judgment of acquittal de novo, United States v. Hansen, 

, 1236 (11th

Cir. 2001) (per curiam). “To uphold the denial of a motion for judgment of

acquittal, we need only determine that a reasonable fact-finder could conclude that

the evidence established the defendant’s guilt beyond a reasonable doubt,” viewing

the facts and drawing all inferences in the light most favorable to the verdict. 

omitted).

      Garnett argues that the government did not carry its burden to prove that he

took the money by intimidation. “Under 18 U.S.C. § 2113(a), intimidation occurs

when an ordinary person in the teller’s position reasonably could infer a threat of

bodily harm from the defendant’s acts.” United States v. Cornillie, 

,

1110 (11th Cir. 1996) (quotation marks omitted) (per curiam). Garnett is right to

say that the element of intimidation “is viewed objectively.” United States v.

Kelley, 

, 1244 (11th Cir. 2005).

      But it does not follow that evidence of a particular person’s subjective fear

cannot properly be considered when a jury decides whether a reasonable person

would be intimidated by the same conduct. See United States v. Graham, 

, 1443 (11th Cir. 1991) (noting that defendant never brandished a weapon or

made threatening gestures, but still finding the evidence sufficient to support

intimidation based on the teller’s testimony that the defendant’s conduct caused her


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to feel afraid); see also United States v. Caldwell, 

, 596 (8th Cir.

2002) (“Whether the defendant’s actions did induce fear in an individual victim is

not conclusive, but is probative of whether his acts were objectively

intimidating.”); United States v. Higdon, 

, 315 (5th Cir. 1987)

(“Evidence that [the defendant’s] acts did induce fear in an individual victim is

probative of whether his acts were objectively intimidating.” (emphasis omitted)).

As a result, the district court did not abuse its discretion by admitting the bank

employees’ testimony about their reactions, and we can properly consider that

evidence in evaluating the sufficiency of the evidence against Garnett.

      The employees’ testimony about their subjective feelings of fear and

intimidation during the robbery supports the jury’s conclusion that his behavior

was objectively intimidating. So, too, does the testimony, video, and photographic

evidence that Garnett aggressively jumped behind the teller counter and came in

close proximity to the tellers during the incident. See 

–46

(finding sufficient evidence of intimidation where the evidence showed that the

defendant aggressively leapt onto the counter and came “within arm’s length” of

the bank teller). Given the evidence, our precedent on what constitutes

intimidation, and the nature of our review, we affirm the district court’s denial of

Garnett’s motion for acquittal.

                                          III.


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      Garnett also challenges the reasonableness of the upward variance in his

sentence, which we review under a deferential abuse of discretion standard.

United States v. Early, 

, 1221 (11th Cir. 2012). Because he

challenges the reasonableness of the sentence, the burden falls on him to show the

district court abused its discretion. 

on a district court’s broad discretion in sentencing a criminal

defendant are supplied by statute, which provides that a district court must impose

a sentence that is “sufficient, but not greater than necessary, to comply with the

purposes” of sentencing. 18 U.S.C. § 3553(a). The purposes of sentencing include

the need to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct, among other factors. 

court reviewing the reasonableness of a sentence “must first

ensure that the district court committed no significant procedural error.” Gall v.

United States, 

, 51, 

, 597 (2007). Examples of

significant procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” 

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      There can be no doubt that Garnett’s sentence is procedurally reasonable.

The district court properly calculated the guideline range, clearly treated the range

as advisory, and did not select the sentence based on erroneous facts. Most

important for this appeal, it is clear from the record that the district court

considered the § 3553(a) sentencing factors and thoroughly explained why it chose

to impose the sentence it did. The court explained that an upward variance was

necessary “for the protection of society,” to reflect the seriousness of Garnett’s

offense and its potential consequences, “to promote respect for the law which

[Garnett] has shown little regard for,” and to deter others who “might be similarly

inclined.” This explanation easily satisfies a district court’s obligation to consider

the relevant sentencing factors and set forth its reasons for imposing a particular

sentence.

      Having determined that the sentence is procedurally reasonable, we now

examine whether it is substantively reasonable in light of the totality of

circumstances. 

, 128 S. Ct. at 597. Because Garnett’s sentence

is outside the guideline range, we may consider the extent of the deviation in

assessing the reasonableness, but must still give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the sentence. 

we might think a different sentence would have been appropriate, we will

reverse only if we are “left with the definite and firm conviction that the district


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court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Rodriguez, 

, 1264–65 (11th

Cir. 2010) (quotation marks omitted).

      A district court imposes a substantively unreasonable sentence when it (1)

fails to afford consideration to relevant factors that were due significant weight, (2)

gives significant weight to an improper or irrelevant factor, or (3) commits a clear

error of judgment in considering the proper factors. United States v. Irey, 

, 1189 (11th Cir. 2010) (en banc). An upward variance may rest upon facts

that have already been taken into account to some extent in calculating the

guideline range. See 

(“[A] district court can rely on

factors in imposing a variance that it had already considered in imposing an

enhancement . . . .”).

       Garnett has not met his heavy burden to establish that his sentence is

substantively unreasonable. Only two of the similar offenses in Garnett’s criminal

history contributed to his offense level. The district court could properly take into

account the other convictions in Garnett’s record, as well as the lack of change in

his behavior following the two offenses which did contribute to his offense level,

when considering whether and to what extent the guideline range adequately

served the purposes of sentencing. As the district court explained, Garnett clearly


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demonstrated a strong propensity to reoffend and that he had not been dissuaded

from law-breaking despite having been convicted a number of times for similar

offenses. This caused a number of the sentencing factors to weigh strongly in

favor of varying Garnett’s sentence upward, at least to some extent. And although

the extent of the variance the district court imposed is significant, we cannot say

that it was outside the range of reasonable sentences given the facts of this case.

      For these reasons, Garnett’s conviction and sentence are AFFIRMED.




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