UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 98-4880

HOYT W. PERKINS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-97-139)

Submitted: December 20, 2000

Decided: November 21, 2001

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed in part and vacated in part by unpublished per curiam opinion. 

COUNSEL

Sean P. Devereux, SEAN P. DEVEREUX, P.A., Asheville, North

Carolina, for Appellant. Mark T. Calloway, United States Attorney,

Thomas R. Ascik, Assistant United States Attorney, Asheville, North

Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Following a jury trial, Hoyt W. Perkins was convicted on one count

of bank robbery in violation of 18 U.S.C.A. § 2113(a) (West 2000),

one count of bank larceny, in violation of 18 U.S.C.A. § 2113(b)

(West 2000), and one count of bank robbery with assault, in violation

of 18 U.S.C.A. § 2113(d) (West 2000). The jury also convicted him

of using a firearm during a crime of violence, in violation of 18

U.S.C.A. § 924(c)(1) (West 2000). The convictions all stem from his

robbery of a NationsBank in Swannanoa, North Carolina, on May 12,

1997. Perkins was sentenced to concurrent ninety-month sentences

for his convictions under 18 U.S.C.A. § 2113(a), (b), and (d), and to

a consecutive five-year prison term for his 18 U.S.C.A. § 924(c)(1)

conviction. Raising three grounds of error, Hoyt timely appealed his

convictions and sentences. 

First, Perkins argues that the district court erred by finding him

competent to stand trial. The experts presented by both the defense

and the prosecution agreed that Perkins suffered from a mental disorder, but the government psychiatrist concluded that Perkins’ mistrust

of his attorney was not a result of his mental disorder, whereas the

defense psychologist testified that it was. Finding the government

psychiatrist more persuasive, the district court ruled that Perkins was

competent to stand trial. We find that the district court was free to

assign greater weight to the findings of the government’s expert than

to the opposing conclusions of the psychologist testifying for Perkins

and that the court’s conclusion that Perkins was competent to stand

trial did not amount to clear error. United States v. Cox, 964 F.2d

1431, 1433 (4th Cir. 1992). 

Next, Perkins challenges his separate convictions for violations of

18 U.S.C.A. § 2113(a), (b), and (d). Perkins is correct that he cannot

be convicted under more than one section of 28 U.S.C.A. § 2113 for

2 UNITED STATES v. PERKINS
the single robbery on May 12, 1997. Accordingly, we vacate Perkins’

convictions for the less aggravated offenses under 18 U.S.C.A.

§ 2113(a) & (b), but affirm his conviction for bank robbery with

assault under 18 U.S.C.A. § 2113(d). 

Finally, Perkins claims that enhancing his offense level by two

levels pursuant to United States Sentencing Guidelines Manual

§ 2B3.1(b)(7)(C) (1998) for losses exceeding $50,000 but not more

than $250,000, and by two levels under USSG § 3C1.2 for reckless

endangerment during flight violate Apprendi v. New Jersey, 530 U.S.

466 (2000), because these facts were not charged in the indictment.

The statutory maximum sentence for violating 18 U.S.C.A. § 2113(d)

is twenty-five years in prison. Perkins’ ninety-month sentence is far

below the statutory maximum. Consequently, we find that the

enhancement of his offense level does not implicate the concerns

raised in Apprendi. See United States v. Kinter, 235 F.3d 192, 199-

201 (4th Cir. 2000), cert. denied, 121 S. Ct. 1393 (2001). 

For these reasons, we affirm Perkins’ convictions and sentences

under 18 U.S.C.A. §§ 2113(d) and 924(c), but vacate his convictions

and sentences under 18 U.S.C.A. § 2113(a) & (b). We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process. 

AFFIRMED IN PART AND VACATED IN PART

UNITED STATES v. PERKINS 3