* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

December 16, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL E. PARKER,

Defendant-Appellant.

No. 07-3364

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 2:07-CR-20063-KHV-1)

Submitted on the briefs:*

Jeffrey D. Morris, Berkowitz, Oliver, Williams, Shaw & Eisenbrandt, LLP,

Kansas City, Missouri, for Defendant-Appellant.

Eric F. Melgren, United States Attorney, David C. Smith, Assistant United States

Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.
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Michael E. Parker appeals his two-count conviction and resulting 85-month

sentence for using a cell phone to convey false information about alleged attempts

to blow up certain buildings. He argues that (1) the district court abused its

discretion in admitting voice-identification evidence; (2) there was insufficient

evidence to support the jury’s guilty verdicts; and (3) the sentence is procedurally

unreasonable. Our jurisdiction arises under 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291. We affirm.

BACKGROUND

On the morning of April 19, 2007, between 5:15 a.m. and 8:09 a.m., the

Douglas County, Kansas, Emergency Communications Center (Dispatch) received

nine 911 calls from an unidentified male using one cell phone. The first four

calls were inaudible. During the fifth call, which was received at 6:46 a.m., the

caller mentioned placing a bomb in a school:

Dispatch: Douglas County 911. What is the address

of the emergency?

[Caller]: Going to put a bomb in one of the schools today.

Dispatch: What school?

[Caller]: Going to be a murder today.

R., Vol. 6 at 4. Only minutes later, in his sixth call, he stated that a school and

possibly a city hall would be blown up:

Dispatch: Douglas County 911. What is the address

of the emergency?

[Caller]: He’s going to blow up a school today.

Dispatch: Where is he going to blow it up?
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[Caller]: He’s going to blow up a school today.

Dispatch: What school?

[Caller]: At City Hall.

Id. The seventh call, at 7:42 a.m., described the type of bomb:

Dispatch: Douglas County 911. What is the address

of the emergency?

[Caller]: He’s got a pipe bomb. Pipe bomb.

Id. The eighth call came in at 7:51 a.m., and referenced both pipe bombs and

schools:

Dispatch: Hello. Hello. Douglas County 911. What

is the address of the emergency? Hello?

[Caller]: Inaudible.

Dispatch: Are you there?

[Caller]: They got pipe bombs. They got pipe bombs.

Dispatch: Who has pipe bombs?

[Caller]: (Inaudible) schools today. They got pipe bombs.

Id. The ninth and final call came in at 8:07 a.m., and was inaudible.

Police quickly learned that the cell phone’s number was registered to Sara

Little. Unable to locate Little, the police had the telephone company “ping[ ]”

Little’s phone at 8:30 a.m. to determine its location. Id., Vol. 3 at 296. The ping

placed the phone “in the location of 12th and New York in Lawrence, Kansas,

with the certainty level of nine meters.” Id. Police responded to the area at 8:40

a.m. and assumed surveillance positions around a building composed of several

apartment units.

At approximately 9:10 a.m., Detective Mike McAtee and Officer Sam

Harvey knocked on the door to Parker’s apartment. Parker spoke with them for a
-4-

few minutes through the door, and then allowed them inside, where he was alone;

but he declined to allow them to search the apartment for the phone. Detective

McAtee left to obtain a search warrant. While he was gone, Detective McAtee

called the cell phone, which Officer Harvey and other officers in Parker’s

apartment heard ringing inside Parker’s recliner.

After the search warrant was obtained, officers recovered Little’s cell

phone from the recliner. They ascertained that, in addition to the 911 calls, there

were also several calls to Parker’s former girlfriend around 8:00 a.m., but the

calls did not go through. The last call made from the phone, which was to a

business number, ended only seconds before Detective McAtee and Officer

Harvey knocked on Parker’s door at 9:10 a.m.

Parker agreed to an interview. He denied making the calls to 911 and he

stated that Little, Sarah Coleman, and others had been in his apartment the prior

evening. Additionally, he claimed that he passed out at 11:00 p.m. and awoke

alone at 7:00 a.m. While Parker was being interviewed, police also questioned

Coleman, who had earlier learned from Little that Parker was suspected of making

bomb threats with Little’s cell phone. Coleman listened to the 911 tapes and

identified the caller with “100%” certainty as Parker. Id., Vol. 4 at 130.

Parker was arrested and indicted on two counts of threatening to blow up,

or alternatively, falsely conveying information about an attempt to blow up, a

building, in violation of 18 U.S.C. § 844(e). The first count identified “a school
-5-

and city hall” as targets, whereas the second count merely stated, “a school.” 

R., Vol. 1, Doc. 1 at 1-2.

At trial, Detective McAtee recounted his investigation of the 911 calls.

Detective M.T. Brown testified that he interviewed Parker on April 19. The

interview was played for the jury. Defense counsel cross-examined Detective

Brown about why he repeatedly asked Parker “to explain himself” during the

interview. Id., Vol. 4 at 252. In response, Detective Brown appeared to opine

that it was Parker’s voice on the 911 tapes: “[I]t probably came sometime after

[Parker] had indicated he was the only one there [in the apartment] and I heard

the phone call - - I heard the voice.” Id.

Coleman testified that she had known Parker for “ten, 15 years,” id. at 100,

that on April 18, 2007, she, Little, and Parker were in his apartment smoking

crack cocaine, and that she left around 9:00 p.m, after Little had departed and left

her phone in the apartment. The government played the 911 tapes in open court,

and Coleman again identified the voice as Parker’s. She admitted, however, that

Parker had phoned her two months before trial and she mistook his voice for a

“Rico” when she was “drunk and high.” Id. at 111, 114.

Little testified that she and Parker were “really good friends.” Id. at 67. 

She stated that on April 18, she, Coleman, and Parker were smoking crack

cocaine in Parker’s apartment. She departed around 7:15 p.m., leaving various

items behind, including her cell phone. After learning that her phone had been
-6-

used to make the bomb threats, Little evaded police until she was arrested several

months later on a probation violation. When police finally asked her to identify

the voice on the 911 tapes, she was aware that Parker was soon to go on trial for

the calls. She identified Parker’s voice as the voice making the threats. The

prosecutor played the 911 calls for Little in open court, and she again identified

Parker as the caller.

The defense’s theory of the case centered on the fact that Parker lived in a

high crime area and that the police failed to pursue other possible suspects. 

Parker testified that after Little and Coleman left his apartment on April 18, other

people came by to consume drugs and alcohol. According to Parker, he did not

know Little’s phone had been left in his apartment and he did not make the 911

calls.

The jury instructions indicated that count one of the indictment, listing the

targets as “a school and city hall,” was premised on the sixth 911 call. Id.,

Vol. 1, Doc. 33 at 16. The instructions also indicated that count two, which listed

the target as “a school,” was based on the fifth, seventh, and eighth 911 calls. Id.

at 17. The jury found Parker guilty on the alternative counts (falsely conveying

information about an attempt to blow up buildings), insofar as the counts

concerned the fifth, sixth, and eighth calls. Parker was found not guilty for the

seventh call.
-7-

The United States Probation Office prepared a presentence investigation

report (PSR), calculating a 77 to 96 month guidelines range based on an offense

level of twenty-two and a category V criminal history. Parker objected to the

PSR’s offense-level calculation, which employed a two-level enhancement for

offenses that involved more than two threats, U.S.S.G. § 2A6.1(b)(2), and a

two-level upward adjustment for the multiple counts, U.S.S.G. § 3D1.4. The

district court overruled the objections and imposed an 85-month sentence on each

count, to be served concurrently. Parker appealed.

DISCUSSION

I. Voice-Identification Evidence

Parker argues that the district court should not have “permitted Detective

Brown to opine that he believed the voice on the 911 calls” was Parker’s voice. 

Aplt. Br. at 18. “We review the district court’s ruling admitting evidence for an

abuse of discretion if an objection is timely made, but if no objection is made, for

plain error.” United States v. Castorena-Jaime, 285 F.3d 916, 931 (10th Cir.

2002). Although Parker claims that he objected to this evidence, and the

government seems to agree, we cannot find any such objection in the record. The

only objection that we can find is Parker’s objection to Detective Brown offering

his opinion that the voice on the 911 calls did not match Parker’s neighbor’s

voice. See R., Vol. 4 at 284. Further, Parker’s own counsel seems to have

elicited Detective Brown’s opinion about Parker’s voice while cross-examining
-8-

him about the interview. See id. at 252. A party may not, however, induce action

during trial and later seek reversal on the ground that the action was error. See

United States v. Deberry, 430 F.3d 1294, 1301-02 (10th Cir. 2005). 

But even if Detective Brown’s voice identification was spontaneous and not

invited by Parker’s counsel, he has not established any error, let alone plain error. 

Specifically, a lay witness need only be “minimal[ly] familiar[ ]” with a

defendant’s voice before offering an identification. United States v.

Zepeda-Lopez, 478 F.3d 1213, 1219 (10th Cir. 2007) (quotation omitted). 

Detective Brown acquired the requisite familiarity with Parker’s voice during his

interview with Parker, which lasted about four hours. Cf. id. (observing that “a

single telephone call, combined with hearing a voice in court, is sufficient for

voice identification testimony to go to the jury”). Nevertheless, Parker challenges

Detective Brown’s voice identification on the basis that Brown had concluded,

before hearing the 911 calls, that Parker was the culprit. But this challenge goes

to the weight of the identification, not its admissibility. See United States v.

Bush, 405 F.3d 909, 917, 919 (10th Cir. 2005) (stating that once minimal

familiarity is satisfied, it is for the jury to assess other evidence that may

undermine the credibility of identification testimony). The voice identification

evidence was properly admitted.
1 While Coleman misidentified Parker’s voice as “Rico” when he called her

several months before trial, Coleman explained that she was “drunk and high” at

(continued...)

-9-

II. Sufficiency of the Evidence

Parker argues that there was insufficient evidence to prove that he made the

911 calls. “Whether the government presented sufficient evidence to support a

conviction is a legal question that we review de novo.” United States v. Zapata,

540 F.3d 1165, 1174 (10th Cir. 2008) (quotation omitted). In conducting our

review, “we view the record in the light most favorable to the government to

determine whether a reasonable jury could find the defendant guilty beyond a

reasonable doubt.” Id. Further, “[w]e do not weigh conflicting evidence or make

credibility determinations, as these are exclusively functions of the jury.” Id.

We conclude that there was ample evidence to support Parker’s conviction. 

The cell phone on which the calls were made was found in Parker’s apartment,

inside his recliner. A call that was made from that phone to a business number

ended only seconds before police knocked on Parker’s door and found him inside,

alone. Even when interviewed by police, Parker indicated that he had been alone

in the apartment since at least 7:00 a.m. —the last three 911 calls occurred after

that time. Other calls to Parker’s girlfriend occurred around the time of the final

two 911 calls. Further, both Coleman and Little, who were well-acquainted with

Parker, identified Parker’s voice on the 911 calls before trial and again during

trial.1

 Finally, because the jury had the opportunity to hear the 911 calls, Parker’s
1

(...continued)

the time. R., Vol. 4 at 111. When Coleman identified Parker’s voice at trial,

however, she was sober. Also, we are not persuaded that Parker’s conviction is

unreliable because Coleman and Little knew when they first identified Parker’s

voice that he was the suspect. Although Coleman’s and Little’s knowledge could

have made their identification of Parker’s voice more likely, their identifications

were consistent with the other evidence that pointed to Parker as the caller. 

“Rather than examining the evidence in bits and pieces, we evaluate the

sufficiency of the evidence by considering the collective inferences to be drawn

from the evidence as a whole.” United States v. Gallant, 537 F.3d 1202, 1222-23

(10th Cir. 2008) (quotations omitted).

2 Although Parker’s appellate brief mentions substantive unreasonableness,

Aplt. Br. at 17-18, his accompanying argument simply restates his procedural

claims.

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interview with police, and Parker’s in-court testimony, it was in a good position

to evaluate the testimony of the various witnesses and to render a verdict about

the caller’s identity. Parker’s challenge to the sufficiency of the evidence is

without merit.

III. Sentencing

“We review sentences for reasonableness under a deferential abuse of

discretion standard.” Zapata, 540 F.3d at 1178 (quotation omitted). 

Reasonableness has both procedural and substantive components. Id. Parker

raises only procedural reasonableness.2

 “A sentence is procedurally unreasonable

if the district court incorrectly calculates or fails to calculate the Guidelines

sentence, treats the Guidelines as mandatory, fails to consider the [18 U.S.C.]

§ 3553(a) factors, relies on clearly erroneous facts, or inadequately explains the
3 Because there were more than two threatening communications, we need

not decide whether the district court properly found multiple threats in each of the

three 911 calls based on multiple schools and a city hall. See Frazer, 391 F.3d at

871 (declining to decide whether multiple threats arise under § 2A6.1(b)(2) when

different bombing locations are mentioned).

-11-

sentence.” Id. (quotation omitted). “When considering the calculation of a

Guidelines sentencing range, we review legal questions de novo and we review

any factual findings for clear error, giving due deference to the district court’s

application of the Guidelines to the facts.” United States v. Gambino-Zavala,

539 F.3d 1221, 1227-28 (10th Cir. 2008) (quotation and brackets omitted).

Parker argues that he did not qualify for U.S.S.G. § 2A6.1(b)(2)’s 2-level

enhancement for an “offense involv[ing] more than two threats.” He contends

that the 911 calls merely advanced one or maybe two distinct threats. Aplt. Br. at

17. It is generally understood, however, that threats are counted under

§ 2A6.1(b)(2) based on the number of threatening communications. See United

States v. Scott, 441 F.3d 1322, 1327 (11th Cir. 2006); United States v. Frazer,

391 F.3d 866, 870-71 (7th Cir. 2004); United States v. Stokes, 347 F.3d 103, 106

(4th Cir. 2003). Here, the jury found Parker responsible for three of the

threatening 911 calls. Accordingly, he qualified for the § 2A6.1(b)(2)

enhancement.3

Parker also argues that the two counts on which he was convicted should

have been grouped together, so he would not have received a two-level upward

adjustment to his offense level. Specifically, because the two counts in this case
-12-

were not grouped together, and they were within four offense levels of each other,

“[t]he combined offense level [was] determined by taking the offense level

applicable to the [count] with the highest level and increasing that offense level

by” two levels. U.S.S.G. § 3D1.4(a). But no upward adjustment would have been

available if the two counts had been combined into a single group. See U.S.S.G.

§ 3D1.4; United States v. Tolbert, 306 F.3d 244, 246 (5th Cir. 2002). 

Under U.S.S.G. § 3D1.2, counts must be grouped together when they

involve “substantially the same harm.” This occurs, for example, when the

“counts involve the same victim” and one or more common acts. U.S.S.G.

§ 3D1.2(a) & (b). But when there are multiple victims who are “directly and

seriously affected by the offense,” grouping is not appropriate. U.S.S.G. § 3D1.2,

application note 2; see also id. § 2A6.1, application note 2 (stating that “multiple

counts involving making a threatening or harassing communication to the same

victim are grouped together . . . [but] [m]ultiple counts involving different

victims are not to be grouped”).

The district court found that the 911 calls targeted multiple victims, in that

Parker mentioned “school,” “schools,” and “City Hall.” See R., Vol. II at 53. 

The PSR indicated that in Douglas County, Kansas, there are four city halls and

thirty-nine public schools. The PSR also reported: the 911 calls caused many of

the schools to go into lockdown mode; thousands of students left or were

picked-up by their parents; police officers were dispatched to various schools and
4 Parker’s reliance on United States v. Chapple, 198 F. App’x 745 (10th Cir.

2006) (unpublished), is misplaced. Chapple involved threatening packages sent

to a company, the intended recipient being the company’s owner. We held that

the district court erred when it created one § 3D1.2 group for the owner and a

separate group for an employee who handled one of the incoming packages. 

Because the employee was merely an “indirect or secondary victim,” she “should

not have been taken into account for purposes of the grouping rules.” Id. at 751

(quotation omitted). Here, in contrast, there were multiple intended targets of the

threatening 911 calls. Consequently, the two counts on which Parker was

convicted could not have been grouped together. Cf. United States v. Nedd,

(continued...)

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city buildings; security personnel conducted vehicle and building-to-building

bomb searches; and six schools cancelled after-school programs.

We have little difficulty concluding that the two counts on which Parker

was convicted directly and seriously affected the schools and city halls

throughout the county. That there were multiple victims is also clear. At the very

least, the “school” listed in count one and the “school” listed in count two qualify

as different victims, given the number of schools in the county, Parker’s failure to

specify any particular school, and Parker’s reference in the eighth call to

“schools.” Further, count one’s “city hall” and count two’s “school” qualify as

different victims of the 911 calls, as they would be different entities. While

Parker’s reference to “At City Hall” could be interpreted as simply supplying the

location of a school to be blown up, nothing in that or the other befuddled calls

excludes “City Hall” as a separate target. Accordingly, we conclude that the

district court appropriately separated the two counts and applied the § 3D1.4

upward adjustment.4
4

(...continued)

262 F.3d 85, 92-93 (1st Cir. 2001) (holding that four threatening calls produced

three primary victims, notwithstanding the fact that each of the calls shared a

common target and criminal objective).

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CONCLUSION

The judgment and sentence of the district court are AFFIRMED.