United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1389

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Michael Carlos Cooper Wiest, *

*

Appellant. *

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Submitted: November 17, 2009

Filed: March 4, 2010

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Before MURPHY, SMITH and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Michael Carlos Cooper Wiest was indicted for three bank robberies under 18

U.S.C. § 2113(a), and three related counts of possession of a firearm in furtherance

of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(a). Wiest pled not guilty,

and moved to suppress some evidence. His motion to suppress was denied. The jury

found Wiest guilty on all counts, and he was sentenced to a total of 696 months (58

years). Wiest appeals, arguing that (1) the district court1

 erred in denying his motion

to suppress, (2) the evidence was insufficient to support his convictions, and (3) the

1

The Honorable John A. Jarvey, United States District Judge for the Southern

District of Iowa.
mandatory minimum sentence of 684 months for three violations of § 924(c) violates

the Eighth Amendment. Having jurisdiction under 28 U.S.C. § 1291, this court

affirms.

I.

A lone robber held up a bank and two credit unions in Des Moines during the

week before Christmas in 2006. Each time, witnesses identified the robber as a polite,

partly masked, short, Hispanic male with a long-barrel gun. Surveillance video

recorded each robbery. Police focused on Wiest as a suspect when two callers, after

viewing local broadcasts of the robbery, said the robber resembled Wiest. One caller

also told police that she had recently seen Wiest with a “wad of cash” in his wallet. 

Police traced Wiest to Sheldon, Iowa, where he was staying in the home of his

girlfriend’s stepmother (Deb Martins). He was arrested on outstanding warrants. 

Wiest's clothes, found in the laundry room of the home, matched those the robber

wore in two robberies. In the trunk of his girlfriend’s car was a gun (.22 caliber rifle

with a broken stock) matching the description of the gun used in the robberies. Wiest

moved to suppress the clothing from the laundry room, arguing that police did not

have a warrant to search the house and that Ms. Martins did not have apparent

authority to consent to the seizure of his clothing. While the officer who recovered

the clothing stated that he asked Ms. Martins if Wiest had any belongings in her home,

Ms. Martins says she voluntarily offered his clothing to police. The district court

denied the motion to suppress.

At trial a witness testified he had seen the .22 caliber rifle with the broken stock

in Wiest’s car, and Wiest had told him not to touch it because it was loaded and that

he had used it “for a couple different jobs.” Two other witnesses testified that Wiest

said he committed the robberies. The jury also saw surveillance video from two

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robberies, where the robber appears to be wearing clothes that look like some of the

clothes recovered from Ms. Martins’s home. 

II.

A.

Wiest argues that the district court erred in denying his motion to suppress the

clothing found in Ms. Martins’s home. He contends that she acted as an instrument

or agent of the government when she took his clothes and turned them over to police,

in violation of the Fourth Amendment. 

This court reviews de novo a district court's conclusions of law regarding a

motion to suppress, and its findings of fact for clear error. United States v. Flores, 474

F.3d 1142, 1144 (8th Cir. 2007). The threshold issue is whether Wiest had a

legitimate expectation of privacy. “The Fourth Amendment protects ‘against

unreasonable searches and seizures,’ but its protections are personal and cannot be

asserted by persons lacking a ‘legitimate expectation of privacy’ in the place

searched.” United States v. Kuenstler, 325 F.3d 1015, 1020 (8th Cir. 2003) (quoting

Rakas v. Illinois, 439 U.S. 128, 143 (1978)). Further, “status as an overnight guest

is alone enough to show that defendant had an expectation of privacy in the home that

society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91,

96-97 (1990). However, “[f]rom the overnight guest's perspective, he seeks shelter

in another’s home precisely because it provides him with... a place where [the guest]

and his possessions will not be disturbed by anyone but his host and those his host

allows inside.” Id. at 99 (emphasis added). According to the record, Wiest spent the

night before he was arrested at Ms. Martins’s home, giving him “status as an

overnight guest,” with some expectation of privacy. However, that expectation is

limited by the fact that Ms. Martins lived in the home, and shared use of the laundry

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room. Wiest had no legitimate expectation that his possessions were private from Ms.

Martins.

Wiest argues that Ms. Martins was a “government actor” for Fourth

Amendment purposes. 

Although the Fourth Amendment does not apply to a search or seizure,

even an arbitrary one, effected by a private party on his own initiative,

the amendment protects against such intrusion if the private party acted

as an instrument or agent of the government . . . . Whether a private party

should be deemed an agent or instrument of the government for Fourth

Amendment purposes necessarily turns on the degree of the

government's participation in the private party's activities, a question that

can only be resolved in light of all the circumstances.

Skinner v. Railway Labor Executive Ass'n, 489 U.S. 602, 604 (1989). “In

considering whether conduct of a private citizen is subject to the Fourth Amendment,

our court considers ‘whether the government had knowledge of and acquiesced in the

intrusive conduct; whether the citizen intended to assist law enforcement or instead

acted to further his own purposes; and whether the citizen acted at the government’s

request.’” United States v. Inman, 558 F.3d 742, 745 (8th Cir. 2009) (quoting United

States v. Smith, 383 F.3d 700, 705 (8th Cir. 2004)).

In this case, the government did have knowledge of Ms. Martins’s conduct

(although it is not intrusive for her to take clothes out of her own washer and dryer). 

There was conflicting testimony whether Ms. Martins intended to assist law

enforcement or instead acted to further her own purposes, and similarly whether she

acted at the government’s request. The on-scene officer says he asked her if Wiest

had any property in the house, but Ms. Martins testifies that she, unprompted, turned

Wiest’s clothes over to police because she didn't want them left in her home. The

district court found that when Ms. Martins turned the clothes over, it was a “voluntary

and unsolicited act,” and this is not clear error. In light of all the circumstances, Ms.

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Martins was not an instrument or agent of the government for Fourth Amendment

purposes. Because the Fourth Amendment does not apply to her conduct, the clothing

was properly admitted.

B.

Wiest argues that the evidence was insufficient to support his convictions. This

court reviews de novo the sufficiency of the evidence to sustain a conviction. United

States v. Honarvar, 477 F.3d 999, 1000 (8th Cir. 2007). Evidence is to be viewed

most favorably to the verdict, giving it the benefit of all reasonable inferences. Id. 

Only where no reasonable jury could find all the elements beyond a reasonable doubt

is reversal appropriate. Id. This court does not weigh the evidence or the credibility

of the witnesses. Id. The jury has the sole responsibility to resolve conflicts or

contradictions in testimony, and credibility determinations are resolved in favor of the

verdict. Id.

Wiest essentially contends that (1) the clothing seized either does not match

clothing worn during the robberies, or is not so distinctive as to tie him to them, (2)

the witnesses who link Wiest to the gun found in the trunk of his girlfriend’s car and

who said he admitted to the robberies are not credible, (3) no money was ever

recovered, and (4) no bank employees positively identify Wiest. However, the jury

saw the seized clothing, the surveillance tapes of the robberies (allowing comparison

to the robber’s clothing), and the firearm seized from the girlfriend’s car (which

matched the firearm that one witness saw in Wiest’s car, and apparently matched the

firearm in the surveillance tapes). The jury also heard testimony that Wiest said he

used the gun “for a couple different jobs.” Two other people testified that Wiest told

them he committed the robberies. The jury’s credibility determinations are virtually

unreviewable on appeal. United States v. Trogdon, 575 F.3d 762, 767 (8th Cir.

2009). This is sufficient evidence for a reasonable jury to conclude beyond a

reasonable doubt that Wiest committed the robberies, and used the gun to do them.

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C.

Wiest argues that the mandatory minimum sentence of 684 months (57 years)

for his three 18 U.S.C. § 924(c) convictions violates the Eighth Amendment. This

court reviews de novo an Eighth Amendment challenge to a sentence. United States

v. Paton, 535 F.3d 829, 837 (8th Cir. 2008). Under 18 U.S.C. § 924(c)(1)(B) and (C),

Wiest’s first conviction for a § 924(c) offense required a sentence of not less than 7

years, and the subsequent two convictions each required a 25-year sentence. All of

the § 924(c) sentences must be served consecutively to one another and to Wiest’s

robbery counts. 18 U.S.C. § 924(c)(1)(D)(ii). The “second or subsequent” conviction

can occur in the same proceeding. Deal v. United States, 508 U.S. 129, 134-36

(1993). 

“The Eighth Amendment, which forbids cruel and unusual punishments,

contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” 

Ewing v. California, 538 U.S. 11, 20 (2003) (rejecting an argument that California’s

three-strikes law violated the Eighth Amendment in a case when Ewing was sentenced

to 25-years-to-life after stealing three golf clubs) (quoting Harmelin v. Michigan, 501

U.S. 957, 996-97 (1991) (Kennedy, J., concurring in part and concurring in the

judgment)). It is exceedingly rare for an offense that does not have a capital sentence

to violate the Eighth Amendment. Paton, 535 F.3d at 838 (upholding a life sentence

for five counts of production of child pornography). 

This court has adopted Justice Kennedy’s analysis in Harmelin to determine 

whether a sentence is “grossly disproportionate” to a crime and thus violates the

Eighth Amendment. See Henderson v. Norris, 258 F.3d 706, 708-09 (8th Cir. 2001). 

The following principles inform the proportionality analysis: “the primacy of the

legislature, the variety of legitimate penological schemes, the nature of the federal

system, and the requirement that proportionality review be guided by objective

factors.” Harmelin, 501 U.S. at 1001. These principles inform the final principle that

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the “Eighth Amendment does not require strict proportionality between crime and

sentence. Rather, it forbids only extreme sentences that are grossly disproportionate

to the crime.” Id. (internal citations omitted). “[I]ntrajurisdictional and

interjurisdictional analyses are appropriate only in the rare case in which a threshold

comparison of the crime committed to the sentence imposed leads to an inference of

gross disproportionality.” Id.

Within the threshold comparison, this court looks first to the gravity of the

crime, considering the harm caused or threatened to the victim or to society, and the

culpability and degree of the defendant’s involvement. Henderson, 258 F.3d at 709. 

Wiest argues that although bank robberies are generally serious crimes, his were less

serious because he did not discharge the weapon or point it at customers, and he was

quick and polite. However, as the government notes, Wiest did point the gun at a

bank teller, and another bank teller has continuing issues regarding "extreme amounts

of fear" after the robbery. Wiest did display the firearm at each robbery. 

As to culpability, Wiest argues that he was 18 at the time of the offenses, all the

robberies were committed within a week, and he has no prior robbery convictions. 

The government counters that Wiest has accumulated a total of eight criminal history

points despite his youth, and that he wrote a letter to a friend from jail threatening a

witness while awaiting trial.

As for the sentence imposed, Wiest contends that he would have been sentenced

to 210-262 months under the guidelines if he were charged with the robberies and

given a five-level increase for brandishing a firearm. He also notes that he would

have received a much shorter sentence under Iowa law. These arguments are

intrajurisdictional and interjurisdictional comparisons inappropriate for the threshold

inquiry. See Harmelin, 501 U.S. at 1001. Wiest also emphasizes that an internal

Justice Department memo urges federal prosecutors to prosecute only two § 924(c)

violations in cases with three or more provable violations. However, as the

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government correctly notes, these recommendations apply “only in the context of a

negotiated plea agreement.” Here, there was no plea agreement. Comparison of the

684-month sentence to the robbery of three financial institutions with a gun does not

lead to an inference of gross disproportionality. Although the sentence is harsh, the

crimes are very serious.

Although this court has not directly addressed whether consecutive sentences

under § 924(c) violate the Eighth Amendment, other circuits uphold similar sentences

under § 924(c). See United States v. Walker, 473 F.3d 71, 79-84 (3rd Cir. 2007) 

(upholding a 55-year mandatory sentence for three § 924(c) counts of using a firearm

during a crime of violence); United States v. Kahn, 461 F.3d 477, 494-95 (4th Cir.

2006) (upholding multiple defendants’ mandatory sentences for multiple violations

of § 924(c)); United States v. Angelos, 433 F.3d 738, 750-53 (10th Cir. 2006)

(upholding a 55-year mandatory sentence for three violations of § 924(c)); United

States v. Beverly, 369 F.3d 516, 536-38 (6th Cir. 2004) (upholding a 71-year

mandatory sentence for various bank robbery charges and three violations of §

924(c)); United States v. Arrington, 159 F.3d 1069, 1073 (7th Cir. 1998) (upholding

an 83-year mandatory sentence for seven robbery convictions and four violations of

§ 924(c)); United States v. Lopez, 37 F.3d 565, 571 (9th Cir. 1994) (upholding a 25-

year mandatory sentence for two violations of § 924(c), stating that “[a] sentence

which is within the limits set by a valid statute may not be overturned on appeal as

cruel and unusual”), vacated on other grounds, 516 U.S. 1022 (1995). No circuit has

held that consecutive sentences under § 924(c) violate the Eighth Amendment. 

Wiest’s sentence was not grossly disproportionate to the crime committed, and does

not violate the Eighth Amendment.2

2

The Supreme Court has heard argument in Sullivan v. Florida, No. 08-7621

(U.S. argued Nov. 9, 2009), on the question whether a life-without-parole sentence to

a 13-year-old is cruel and unusual punishment. As Wiest was an adult at the time of

the offenses and did not receive a life sentence, the facts of Sullivan are

distinguishable. See United States v. McDonel, No. 08-2182, 2010 WL 323372, at

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III.

The judgment of the district court is affirmed.

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*6 (6th Cir. Jan. 28, 2010) (upholding a 107-year mandatory sentence imposed on a

19-year-old offender for five violations of § 924(c)).

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