## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1389

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the Southern * District of Iowa. Michael Carlos Cooper Wiest, *
* Appellant. *

___________ Submitted: November 17, 2009 Filed: March 4, 2010

___________ Before MURPHY, SMITH and BENTON, Circuit Judges.

___________ BENTON, Circuit Judge. Michael Carlos Cooper Wiest was indict ed 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. Hi s 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 court 1 erred in denying his motion to suppress, (2) the evidence was insuffici ent to support his convictions, and (3) the

1 The Honorable John A. Jarvey, United Stat es District Judge for the Southern District of Iowa.mandatory minimum sentence of 684 months fo r three violations of § 924(c) violates the Eighth Amendment. Having jurisd iction 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 w ith a long-barrel gun. Surveillance video recorded each robbery. Police focused on Wi est as a suspect whentwo 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 “w ad of cash” in his wallet.

Police traced Wiest to Sheldon, Iowa, wher e 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 hi s 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 ju ry also saw surveillance video from two

-2-robberies, where the robber appears to be w earing 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 c ontends that she acted as an instrument or agent of the government when she took hi s clothes and turned them over to police, in violation of the Fourth Amendment.

This court reviews de novo a district c ourt's conclusions of law regarding a motion to suppress, and its findi ngs 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 overnightguest'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). Accordi ng 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 inthe home, and shared use of the laundry

-3-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 notapply 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 gove rnment . . . . 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 priv ate 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 citi zen is subject to the Fourth Amendment, our court considers ‘whether the governmenthad knowledge of and acquiesced in the intrusive conduct; whether the citizen intende d 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 ha ve 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 actedto further her own purposes , and similarly whether she acted at the government’s request. The on-s cene 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 di dn'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 erro r. In light of all the circumstances, Ms.

-4-Martins was not an instrument or agent of the government for Fourth Amendment purposes. Because the Fourth Amendment doe s not apply to her conduct, the clothing was properly admitted.

B.

Wiest argues that the evid ence 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 th e benefit of all reas onable inferences. Id

. Only where no reasonable jury could fi nd 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 de terminations are resolved in favor of the verdict. Id

. Wiest essentially contends that (1) th e 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 em ployees 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 firear m seized from the girlfriend’s car (which matched the firearm that one witness saw inWiest’s car, and apparently matched the firearm in the surveillance tapes). The ju ry 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.

-5-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 Ame ndment challenge to a sentence. United States v. Paton , 535 F.3d 829, 837 (8th Cir. 2008). U nder 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 c onsecutively 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 Ame ndment 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., conc urring 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 Jus tice 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 penol ogical 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

-6-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 se ntence imposed leads to an inference of gross disproportionality.” Id

. Within the threshold comparison, this c ourt looks first to the gravity of the crime, considering the harm caused or threaten ed 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 w eapon 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 issu es regarding "extreme amounts of fear" after the robbery. Wiest di d display the firearm at each robbery.

As to culpability, Wiest argue s 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 accumu lated 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 hewere 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 moreprovable violations. However, as the

-7-government correctly notes, these recommendations apply “only in the context of a negotiated plea agreement.” Here, there wa s no plea agreement. Comparison of the 684-month sentence to the robbery of thr ee financial instituti ons with a gun does not lead to an inference of gross disproporti onality. 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’ mandato ry 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 robbe ry 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 r obbery 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 se t 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
-8-III.

The judgment of the district court is affirmed.

___________________________

*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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