1

The Honorable William Jay Riley became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 1, 2010.

2

The Honorable David Gregory Kays, United States District Judge for the

Western District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2614

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

Jeffrey A. Baker, *

* [UNPUBLISHED]

Appellant. *

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Submitted: February 8, 2010

Filed: July 15, 2010 

___________

Before RILEY, Chief Judge,1

 SMITH and SHEPHERD, Circuit Judges.

___________

PER CURIAM. 

Jeffrey Baker pleaded guilty to one count of bank robbery ("Count 1"), in

violation of 18 U.S.C. § 2113(a) and (d), and one count of brandishing a firearm

during a crime of violence ("Count 2"), in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

The district court2

 sentenced Baker to 46 months' imprisonment on Count 1 and 84

consecutive months on Count 2. The district court also ordered that the Count 1
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sentence be served consecutive to Baker's existing 31-month sentence for a robbery

in Johnson County, Kansas. On appeal, Baker maintains that the district court

unreasonably ordered the sentence for Count 1 to run consecutive to the Johnson

County sentence. We disagree and affirm the judgment of the district court.

I. Background

On December 26, 2007, Baker and codefendant, Rashaud S. Shelton, robbed the

Central Bank of Kansas City at gun point. Baker and Shelton employed a juvenile as

a lookout remaining at the bank door during the robbery. Baker and Shelton entered

the bank at approximately 4:20 p.m. wearing ski masks and hooded coats. Baker and

Shelton approached one of the bank employees and directed that employee to put

money from his drawer into a trash bag that Baker handed to him. The employee

complied and, while doing so, placed bait money into the bag causing the bank's alarm

system to trigger. The robbers instructed the employee to step away from the counter

and to keep his hands where Baker and Shelton could see them. Baker and Shelton

demanded access to the bank vault. An employee led Shelton to the vault; while

opening the vault, Shelton stated, "Don't do anything stupid." Shelton also threatened

that it would "be all over" if he heard any sirens. While in the vault, this employee saw

a firearm in Shelton's left hand.

After obtaining the money from the vault, Baker, Shelton, and the juvenile left

the bank and fled the scene on foot. Through various tips and information obtained

from a confidential informant, the Kansas City Missouri Police Department began to

develop leads on the three individuals involved in the robbery. The juvenile was the

first of the three to be interviewed. He identified Shelton as a participant in the

robbery. He also explained that Shelton told him what to do during the robbery and

that he did not know Baker. Baker and his accomplices stole approximately $65,000

from the bank.
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Kansas City police picked Shelton up on April 5, 2008, and interviewed him

regarding his involvement in the robbery. He admitted making threats to a bank

employee and further indicated that he gave the gun to Baker because the bag of

money that he was carrying out from the vault was too heavy. 

Law enforcement also interviewed Baker. Baker stated that he, Shelton, and the

juvenile planned the robbery together and selected the location based on Shelton's

prior surveillance. Baker further described that when Shelton did not respond to

Baker's requests to leave the bank, he went into the vault to get him. Upon entering

the vault, Baker stated that he found Shelton attempting to hold the gun under his chin

because his arms were occupied with the money. Baker testified at his plea hearing

that he took the gun from Shelton and put it into his pocket.

On January 10, 2008, a grand jury returned an indictment charging Baker with

one count of bank robbery and one count of using a firearm during the commission

of a crime of violence. On March 19, 2009, the district court conducted a change of

plea hearing at which Baker pleaded guilty to both counts of the indictment. Baker’s

presentence investigation report (PSR) calculated his base offense level for count 1

as 20. The PSR added two levels for the involvement of a financial institution and two

levels for the amount of loss. Baker received no enhancement for his role in the

offense but did receive a two-level reduction for acceptance of responsibility. Baker

received an additional one-level reduction for assisting the investigation. Baker's prior

offenses gave him four criminal history points and placed him in criminal history

category III.

On June 30, 2009, the district court conducted a sentencing hearing. During that

hearing, the district court sentenced Baker to 46 months' imprisonment on Count 1 and
3

18 U.S.C. § 924(c)(1)(D)(ii) provides: "[N]o term of imprisonment imposed

on a person under this subsection shall run concurrently with any other term of

imprisonment imposed on the person, including any term of imprisonment imposed

for the crime of violence or drug trafficking crime during which the firearm was used,

carried, or possessed." 

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84 months consecutively on Count 2 as required by 18 U.S.C. § 924(c)(1)(D)(ii)3

. The

district court also ordered the Count 1 sentence to run consecutive to Baker's

31-month sentence that he had already received for the robbery in Johnson County.

II. Discussion

On appeal, Baker makes three arguments seeking reversal of his sentence. First,

he asserts that given the absence of violence in the robbery, the minor role that he

played in the offense, the Guidelines enhancement resulting from the Kansas

conviction, and his minimal criminal history, the district court abused its discretion

in ordering the sentence for Count 1 to run consecutive to the Johnson County

sentence. 

Next, Baker contends that 18 U.S.C. § 3584(a) and (b) mandate consideration

of the 18 U.S.C. § 3553(a) factors in determining whether to impose a concurrent,

partially concurrent, or consecutive sentence, and that when considering those factors

his sentences should run concurrently. 

Finally, Baker asserts that the Sentencing Commission contemplated cases like

his and specifically designed U.S.S.G. § 5G1.3 to permit courts to run sentences

concurrently. Accordingly, Baker argues that the court's order of consecutive

sentences is unreasonable as it imposes a sentence that is greater than necessary to

fulfill the purposes set forth in § 3553(a)(2).
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"We review the district court's application of the sentencing guidelines de

novo." United States v. Sumlin, 317 F.3d 780, 782 (8th Cir. 2003). "We review the

district court's application of section 5G1.3 de novo." United States v. Lyons, 47 F.3d

309, 311 (8th Cir. 1995). "We review a district court's decision to impose a

consecutive or concurrent sentence for reasonableness." United States v. Winston, 456

F.3d 861, 867 (8th Cir. 2006).

We affirm the district court's imposition of consecutive sentences. Section

5G1.3(c) provides: "In any other case involving an undischarged term of

imprisonment, the sentence for the instant offense may be imposed to run

concurrently, partially concurrently, or consecutively to the prior undischarged term

of imprisonment to achieve a reasonable punishment for the instant offense." Baker

takes issue with the district court's weighing of the § 3553 factors and its explanation

of that weighing. After reviewing the record as a whole, specifically the facts

underlying the offense and placing particular emphasis on Baker's potentially harmful

acts, we hold the that district court properly exercised its discretion under § 5G1.3.

Finally, § 3584(a) provides: "If multiple terms of imprisonment are imposed on

a defendant at the same time, or if a term of imprisonment is imposed on a defendant

who is already subject to an undischarged term of imprisonment, the terms may run

concurrently or consecutively. . . ." Section 3584(b) provides: "The court, in

determining whether the terms imposed are to be ordered to run concurrently or

consecutively, shall consider, as to each offense for which a term of imprisonment is

being imposed, the factors set forth in section 3553(a)." 

The record reflects that the district court adequately considered the § 3553(a)

factors in imposing consecutive sentences. The court specifically considered the

seriousness of his offenses, the potential for harm to others, and Baker's potential for

rehabilitation. Furthermore, § 3584 "encourages consecutive sentences '[w]hen prison

terms for multiple offenses are imposed at different times.'" United States v. Betts, 509
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F.3d 441, 447 (8th Cir. 2007) (quoting United States v. Shafer, 438 F.3d 1225, 1227

(8th Cir. 2006)). Baker's two sentences were imposed at different times and thus the

Guidelines advise consecutive sentences. The sentence ultimately imposed was not

unreasonable. 

III. Conclusion

The judgment of the district court is affirmed.

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