NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ____________

     Nos. 11-1615, 11-2713 and 11-3808
               ____________

      UNITED STATES OF AMERICA

                      v.

          DOMINIQUE JOHNSON,

                   Appellant, No. 11-1615
                ____________

      UNITED STATES OF AMERICA

                      v.

               AMIN DANCY,

                   Appellant, No. 11-2713
                ____________

      UNITED STATES OF AMERICA

                      v.

              JERRY TAYLOR,

                   Appellant, No. 11-3808
                ____________

On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
          (D.C. Nos. 2-09-cr-00685-002,
  2-09-cr-00685-004 and 2-09-cr-00685-001)
District Judge: Honorable Mary A. McLaughlin
                 ____________
                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 14, 2012

               Before: SCIRICA, FISHER and JORDAN, Circuit Judges.

                                 (Filed: March 19, 2013)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Dominique Johnson, Amin Dancy, and Jerry Taylor appeal from their judgments

of conviction and sentence. We will resolve these unconsolidated appeals together

because they arise from a common factual background and were tried before the same

District Court. For the reasons stated below, we will affirm.

                                             I.

       Because we write principally for the parties, we will set forth only the factual

background and procedural history necessary to our analysis.

       These cases arise from a series of five related armed robberies targeting Wachovia

Banks in the greater Philadelphia, Pennsylvania area on Fridays in the Summer of 2009.

       Based on his involvement in all five robberies, Johnson was convicted of ten

counts, including two counts of conspiracy to commit armed bank robbery, 18 U.S.C.

§ 371; one count of armed bank robbery, § 2113(d); four counts of armed bank robbery

and aiding and abetting, §§ 2113(d) and 2; and three counts of using and carrying a




                                             2
firearm during and in relation to a crime of violence and aiding and abetting, §§ 924(c)(1)

and 2. He was sentenced to 835 months‟ imprisonment.

       Dancy was tried jointly with Johnson. For his role in the fifth robbery, he was

convicted of one count each of conspiracy to commit armed bank robbery, § 371; armed

bank robbery and aiding and abetting, §§ 2113(d) and 2; and using and carrying a firearm

during and in relation to a crime of violence and aiding and abetting, §§ 924(c)(1) and 2.

He was sentenced to 135 months‟ imprisonment.

       Taylor‟s trial was severed from that of Johnson and Dancy. As a result of his

participation in the second robbery, he was convicted of one count each of conspiracy to

commit armed bank robbery, § 371, and armed bank robbery and aiding and abetting,

§§ 2113(d) and 2. He was sentenced to 110 months‟ imprisonment.

                                            II.

       The District Court had jurisdiction over these cases under 18 U.S.C. § 3231, and

we have jurisdiction over these appeals under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

                                            III.

       We will address Johnson‟s appeal in Part III.A, Dancy‟s appeal in Part III.B, and

Taylor‟s appeal in Part III.C.

                                            A.

       We first analyze Johnson‟s claims that the District Court erred in: (1) denying his

motion to suppress evidence seized during the search incident to his unlawful arrest;


                                             3
(2) denying his motion for a judgment of acquittal based on the insufficiency of the

evidence supporting certain of his convictions; (3) sentencing him to mandatory

minimums on the firearms counts; and (4) sentencing him without grouping the robbery

counts. For the denial of Johnson‟s motion to suppress, we exercise clear error review

over the District Court‟s findings of fact and plenary review over its application of law to

facts. United States v. Perez, 

, 336 (3d Cir. 2002). We exercise plenary

review over the District Court‟s denial of Johnson‟s motion for a judgment of acquittal,

United States v. Brodie, 

, 133 (3d Cir. 2005), and Johnson‟s constitutional

and statutory construction challenges to the District Court‟s imposition of mandatory

minimum sentences, United States v. Walker, 

, 75 (3d Cir. 2007). We review

the procedural reasonableness of Johnson‟s sentence for an abuse of discretion by the

District Court. United States v. Tomko, 

, 567 (3d Cir. 2009) (en banc).

                                             1.

       Johnson‟s first claim is that his cell phone was seized during the search incident to

his arrest without probable cause in violation of the Fourth Amendment. After a hearing,

the District Court denied Johnson‟s motion to suppress. We too reject Johnson‟s

argument.

       The Fourth Amendment permits a felony arrest without a warrant based on

probable cause, United States v. Watson, 

, 417 (1976), which is established

when an officer has an objectively reasonable ground for belief in a suspect‟s guilt based


                                             4
on the totality of the circumstances prior to the arrest, Maryland v. Pringle, 

,

369-71 (2003). An officer may perform a warrantless search incident to a lawful arrest

and seize evidence of criminal activity found within the area of the suspect‟s immediate

control. Chimel v. California, 

, 763 (1969). But the exclusionary rule

generally requires suppression of evidence seized during a search incident to an unlawful

arrest. Wong Sun v. United States, 

, 484 (1963).

       We conclude that officers had probable cause to arrest Johnson for substantially

the same reasons cited by the District Court. Contrary to Johnson‟s contentions, Donald

Asper, an investigating officer, testified that before he arrested Johnson, William Childs,

a cooperating witness, identified Johnson; that Childs‟s statement was corroborated; and

that Johnson walked quickly away as soon as he saw the arresting officers‟ multiple,

tinted, sport utility vehicles.1 Because Johnson‟s cell phone was seized during the search

incident to his lawful arrest, we will affirm the District Court‟s denial of his motion to

suppress.2 United States v. Robinson, 

, 235 (1973).




       1
         We agree with the Government that Johnson‟s unfounded, implicit suggestion
that he was arrested solely because he is a black male is unfortunate.
       2
         The Government argues, in the alternative, that any error was harmless because
the remaining evidence overwhelmingly established Johnson‟s guilt. See Arizona v.
Fulminante, 

, 307 (1991) (noting that the “admission of evidence obtained
in violation of the Fourth Amendment” is subject to harmless error analysis (citation
omitted)). Because we conclude that there was probable cause to arrest Johnson, we need
not decide this question.


                                              5
                                             2.

       Johnson‟s second claim is that the evidence was insufficient to support his

robbery, firearms, and aiding and abetting convictions. Johnson moved for a judgment of

acquittal after the Government rested its case and after the jury returned its verdict. The

District Court concluded that sufficient evidence supported his convictions, and we are

not persuaded by Johnson‟s protests to the contrary.

       We review this claim by examining “the totality of the evidence, both direct and

circumstantial,” which we interpret “in the light most favorable to the [G]overnment as

the verdict winner.” United States v. Starnes, 

, 206 (3d Cir. 2009)

(quotation omitted). We uphold the verdict “if there is substantial evidence from which a

rational trier of fact could find the essential elements of the crime beyond a reasonable

doubt.” Id. (citations omitted). Thus, “[t]he burden on a defendant who raises a

challenge to the sufficiency of the evidence is extremely high.” Id. (quotation omitted).

       Johnson argues that the evidence was insufficient because no victim identified

him, no physical evidence implicated him, and the cooperating witness testimony was

unreliable and uncorroborated. However, Johnson was repeatedly identified and

consistently implicated by his co-conspirators. We will not invade the province of the

jury by re-weighing the credibility of these witnesses. Brodie, 403 F.3d at 133. The

uncorroborated testimony of Johnson‟s co-conspirators could provide a constitutionally

sufficient basis for his convictions. Perez, 280 F.3d at 344.


                                             6
       But the testimony of Johnson‟s co-conspirators was actually corroborated. For

example, Gregory Lawrence, a cooperating witness, implicated Johnson in the first

robbery and described his cracked teeth. His testimony was corroborated by Karen

Hohmann, a victim of the first robbery, who noticed the perpetrator‟s crooked teeth.

Similarly, Tiniesha Johnson, Johnson‟s sister and a cooperating witness, testified that she

drove Johnson‟s silver Buick Park Avenue during the fourth robbery, and that a red dye

pack from the stolen money exploded in the trunk after that robbery. Officers

corroborated her testimony about the car used in the fourth robbery, and physical

evidence of stains in the trunk corroborated her testimony about the exploding dye. We

conclude that the evidence was sufficient to support Johnson‟s convictions, and thus we

will affirm the District Court‟s denial of his motion for a judgment of acquittal.

                                             3.

       Johnson‟s third claim is that the District Court erred in sentencing him to a

mandatory consecutive term of 84 months on the first firearm count and mandatory

consecutive terms of 300 months on each of the second and third firearms counts. He

contends that the 18 U.S.C. § 924(c) sentencing scheme violates the Fourteenth

Amendment‟s Due Process Clause by preventing individualized sentencing; violates the

Eighth Amendment‟s prohibition of cruel and unusual punishment by prescribing

sentences that are grossly disproportionate to offenses; is ambiguous as applied to second

or subsequent convictions charged in the same indictment as a first conviction; and is in


                                             7
conflict with the sentencing factors set forth in 18 U.S.C. § 3553(a). Johnson‟s

arguments are foreclosed by controlling precedent, Deal v. United States, 

(1993); Walker, 

, and thus the District Court did not err in rejecting them.

                                             4.

       Johnson‟s final claim is that “the District Court erroneously used its discretion in

ruling that the [robbery offense] counts should be grouped for purposes of sentencing.”

Appellant‟s Br. at 53. However, the District Court adopted the pre-sentence report‟s

classification of the five robbery counts as five separate groups. For this reason, we will

interpret – and reject – Johnson‟s confused argument as a contention that the District

Court procedurally erred in failing to group the five robbery counts.

       The Sentencing Guidelines provide that counts involve substantially the same

harm and must be treated as a single group if they relate to “the same victim and two or

more acts . . . constituting part of a common scheme,” U.S.S.G. § 3D1.2(b), or if their

“offense level is determined largely on the basis of the total amount of harm or loss,”

§ 3D1.2(d). However, for purposes of § 3D1.2(b), the robbery of a bank “on different

occasions involves multiple, separate instances of fear and risk of harm.” § 3D1.2 cmt.

n.4. And, as Johnson concedes, § 3D1.2(d) “expressly excludes U.S.S.G. § 2B3.1

(Robbery Offenses).” Appellant‟s Br. at 53. Thus, the District Court did not abuse its

discretion in refusing to group Johnson‟s five robbery counts.




                                             8
                                             B.

       We next analyze Dancy‟s claims that: (1) the evidence was insufficient to support

his firearm conviction, and (2) the District Court abused its discretion in overruling his

objection to prosecutorial misconduct during the Government‟s closing. Because Dancy

did not move for a judgment of acquittal based on the sufficiency of the evidence, we

review his first claim for plain error. United States v. Gordon, 

, 547 (3d Cir.

2002). But because Dancy did lodge a contemporaneous objection to the Government‟s

closing, we review his second claim for an abuse of discretion. United States v. Lee, 

, 193 (3d Cir. 2010).

                                             1.

       Dancy first claims that the evidence was insufficient to support his conviction

under 18 U.S.C. § 924(c)(1) because the Government failed to prove beyond a reasonable

doubt that during the fifth bank robbery he used or carried a firearm, as defined in

§ 921(a)(3), rather than the BB gun that was used in the first and second robberies. He

contends that his conviction should be vacated under United States v. Lake, 

(3d Cir. 1998), and United States v. Beverly, 

 (3d Cir. 1996), because neither

a firearm nor the BB gun was recovered, the eyewitnesses only briefly saw the weapon,

and their descriptions of the weapon were consistent with either a firearm or a BB gun.

       Dancy mischaracterizes our precedent. A conviction under § 924(c)(1) may be

sustained even if a firearm is not recovered, Lake, 150 F.3d at 271; in fact, testimony


                                              9
describing a firearm by a single, non-expert eyewitness may be sufficient to sustain the

conviction, Beverly, 99 F.3d at 572-73. The eyewitness‟s close proximity to the weapon

is as much a factor as the length of time she sees the weapon, id., and her description is

sufficient if it is not inconsistent with an actual firearm, Lake, 150 F.3d at 271.

       The evidence in this case is stronger than that in both Lake and Beverly, where we

sustained convictions under § 924(c)(1). Here, Josephine Mayer, a bank teller, testified

that the robber shoved what she believed to be a gun into her side, and Joel Cope, the

bank manager, who had experience with firearms as a hunter for more than thirty years,

testified that the robber pointed what he had no doubt was a real pistol at his side.

Moreover, this eyewitness testimony was corroborated by Christopher Montague, a co-

conspirator in the fifth robbery, who testified that Dancy used a .40 caliber handgun,

which he knew was real because he saw that it was loaded. Montague‟s testimony alone

provides a second constitutionally sufficient basis for Dancy‟s conviction. Perez, 280

F.3d at 344. Accordingly, we will uphold Dancy‟s § 924(c)(1) conviction.

                                              2.

       Dancy next claims that the District Court abused its discretion in overruling his

objection to prosecutorial misconduct during the Government‟s closing. He contends that

he was denied his due process right to a fair trial when the prosecutor bolstered the

testimony of cooperating witnesses Lawrence and Montague, who had implicated him in

the fifth robbery, by telling the jury: “[Y]ou know that Amin Dancy actually went into


                                              10
the bank and robbed it on July 31st.” App. VIII at 138. The District Court effectively

sustained Dancy‟s objection by ordering the prosecutor to move along.

       We review the prosecutor‟s statement “in context and in light of the entire trial,

assessing the severity of the conduct, the effect of the curative instructions, and the

quantum of evidence against the defendant.” Lee, 612 F.3d at 194 (quotation omitted).

A prosecutor enjoys “considerable latitude in summation to argue the evidence and any

reasonable inferences that can be drawn from that evidence.” Id. (quotation omitted).

However, a prosecutor engages in improper vouching when she assures the jury based on

her “personal knowledge, experience, or opinions” or “other information not contained in

the record” of the credibility of a Government witness. Id. at 195 (citation and quotation

omitted).

       Because the prosecutor‟s statement was supported by record evidence – such as

DNA evidence tying Dancy to the fifth robbery – there was no misconduct. Moreover,

even if the statement were improper, the prosecutor ceased vouching after Dancy‟s

objection, and the District Court instructed the jury that closings were not evidence.

Thus, it is “highly probable that the error did not contribute to the judgment,”3 id. at 194

(quotation omitted), and Dancy is not entitled to a new trial.



       3
         Although Dancy argues otherwise, we have held that improper vouching to
bolster witness credibility is non-constitutional error. United States v. Lee, 

,
195 n.30 (3d Cir. 2010).


                                             11
                                             C.

       We finally analyze Taylor‟s claims that the District Court erred in sentencing him

by: (1) refusing a downward adjustment based on his mitigating role in calculating his

total offense level, and (2) including his two prior marijuana possession offenses in

calculating his criminal history category. We review Taylor‟s sentence to verify that the

District Court did not procedurally err by “improperly calculating[] the Guidelines range,

. . . selecting a sentence based on clearly erroneous facts, or failing to adequately explain

the chosen sentence.” Gall v. United States, 

, 51 (2007). Our review is for an

abuse of discretion. Tomko, 562 F.3d at 567.

                                              1.

       Taylor claims that the District Court erred in improperly calculating his total

offense level by refusing to grant any downward adjustment based on his mitigating role.

Specifically, he contends that its factual finding that he was as culpable as Johnson was

clearly erroneous. We disagree.

       Under U.S.S.G. § 3B1.2, a sentencing court has broad discretion to decrease a

defendant‟s offense level by four if he was a minimal participant in any criminal activity,

by two if he was a minor participant, and by three if he played a middle role. United

States v. Isaza-Zapata, 

, 239 (3d Cir. 1998). The applicability of this

section is based on the culpability of the defendant relative to his collaborators as

revealed by “the nature of the defendant‟s relationship to the other participants, the


                                             12
importance of the defendant‟s actions to the success of the venture, and the defendant‟s

awareness of the nature and scope of the criminal enterprise.” Id. (quotation omitted).

       Here, for the first factor, the District Court found that Taylor was not a bystander

who “just wander[ed] into th[e] robbery,” Appellee‟s App. at 79; indeed, he agreed to be

a lookout for the second robbery. In relation to the second factor, the District Court‟s

finding that Taylor was “integral” to the success of the robbery, id. at 51, is confirmed by

Lawrence‟s testimony that he needed a lookout. And under the third factor, the District

Court found that Taylor “knew the scope and structure of the enterprise,” id. at 50, as

demonstrated by Lawrence‟s testimony that he told Taylor the details of his plan.

       From this evidence, the District Court found that Taylor was not less culpable than

Johnson even though Johnson was the leader of the second robbery. Even if Taylor were

less culpable than Johnson, he would not be entitled to “„minor participant‟ status as a

matter of law,” United States v. Brown, 

, 819 (3d Cir. 2001) (citation

omitted), and he has not demonstrated that he was substantially less culpable than

Johnson, Isaza-Zapata, 148 F.3d at 240. Because the District Court‟s factual finding was

not clearly erroneous, we will affirm its calculation of Taylor‟s total offense level.4, 5


       4
         Taylor also argues that the District Court‟s finding was clearly erroneous because
it was based on the facts of the third and fourth robberies rather than the second robbery.
However, after Taylor voiced this concern at the sentencing hearing, the District Court
acknowledged its initial confusion, heard additional argument, and announced its final
ruling. There is no indication that the District Court‟s final ruling was the result of an
inaccurate recollection of the second robbery.


                                              13
                                              2.

       Taylor also claims that the District Court erred in improperly calculating his

criminal history category by including two points for his two prior sentences for minor

marijuana possession.6 We see no abuse of discretion.

       Under the Guidelines, sentences for misdemeanor and petty offenses are generally

counted in a criminal history calculation. U.S.S.G. § 4A1.2(c). But certain listed and

similar unlisted offenses are either not counted or counted only in limited circumstances.

Id. To determine whether an unlisted offense is similar to a listed offense, we employ “a

common sense approach” that analyzes factors such as “(i) a comparison of punishments

imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense

as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of

culpability involved; and (v) the degree to which the commission of the offense indicates

a likelihood of recurring criminal conduct.” Id. at cmt. n.12(A).




       5
          Taylor additionally asserts that the District Court erred by concluding as a matter
of law that because a lookout plays an integral role in a three-man robbery, he cannot
qualify for a downward adjustment based on a mitigating role. In light of the District
Court‟s consideration of the evidence supporting the U.S.S.G. § 3B1.2 factors, it is clear
that its ruling did not rest on any such legal conclusion.
       6
          The Government counters that Taylor either abandoned or forfeited this claim by
first raising it as an objection to his pre-sentence report, and by later contending only that
he was entitled to a downward departure under U.S.S.G. § 4A1.3(b) in his sentencing
memorandum and at his sentencing hearing. To the contrary, this argument was made by
Taylor and rejected by the District Court at his sentencing hearing.


                                             14
       Taylor argues that the nominal punishments imposed for his two prior marijuana

possession offenses are comparable to the punishments imposed for the listed offenses

and indicate that marijuana possession offenses are not perceived as serious. However,

the listed offenses do not include possession offenses for any quantity of any controlled

substance, and a defendant‟s culpability for possession of even a small amount of

marijuana for personal use is not insignificant to the extent that it promotes drug

trafficking. Therefore, we will affirm the District Court‟s calculation of Taylor‟s

criminal history category.7

                                            IV.

       For the reasons stated above, we will affirm the District Court‟s judgments of

conviction and sentence as to Johnson, Dancy, and Taylor.




       7
         Taylor further contends that the District Court erred in failing to adequately
explain its reasoning for including the two points in his criminal history category. Taylor
is incorrect. The record reflects that the District Court expressly explained that in
counting his two prior convictions for minor marijuana possession, it considered “the
likelihood that he [would] commit other crimes,” and the fact that he committed these
crimes “while [he] was on parole.” Appellee‟s App. at 52.


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