### The Honorab le Scott O. Wright, United States Senior District 1 

### Judge for the Western District of Missouri. Miranda v. Arizona , 384 U.S. 436 (1966). 2 ___________ No. 96-2261

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Ronald August Lank, also known * as Paul Robert Sass, also * known as Kevin Mannell, * * Appellant. *

___________ Submitted: November 19, 1996 Filed: March 11, 1997

___________ Before McMILLIAN, Cir cuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

___________ HENLEY, Senior Circuit Judge.
Ronald A. Lank appeals from a judgment of the distri ct court entered 1 upon a jury verdict finding him guilty of armed bank robbery and interstat e transportation of a stolen vehicle in violation of 18 U.S.C. §§ 2113 , 2312. We affirm.
On January 18, 1995, Lank robbed a bank in Texas. He was appre hended later that day after officers on horseback found him in a wooded area

. After he was arrested, he signed Miranda waivers and confessed not onl y 2 to the Texas robbery, but also admitted that

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on January 9, 1995, he robbed the Central Bank in Holts Summit, Missouri and on January 7, 1995, in Tennessee stole a car, which he used in th e Missouri robbery.

Altho ugh Lank pleaded guilty to the Texas robbery, he pleaded no t guiltyto the Central Bank robbery and transportation charges. Befor e trial on the charges, Lank moved to suppress the statements he mad e foll owing his Texas arrest. He also moved to suppress the pre-tria l identifications of th ree Central Bank employees. Following a suppression hearing, the district court denied the motions, and the statements an d identifications were introduced at trial. In ad dition, at trial the three employees identified Lank as the robber.

Based on a total offense level of 27 and a criminal history category of VI, the presentence report recommended a sent encing range of 130 to 162 months. The district court, imposing an obstruction of justice enhancemen t under U.S.S.G. § 3C1. 1 and granting the government's motion for an upward departure under U.S.S.G § 4A1.3, sentenced Lank to 210 months imprisonment
on the rob bery conviction and a concurrent 120 months on the unlawfu l transp ortation conviction, to be served consecutively to a 105- mont h sentence imposed for the Texas bank robbery.
On appeal Lank first argues that the district court erred in failing to grant his pretrial motion to suppress the statements. His argument is without merit. Although at the suppression hear ing Lank testified that he gave the s tatements only because he had been beaten, dragged behind a horse, and threatened , the district court rejected his testimony, finding it was incredible. W e do not disturb this credibility finding. Not only did the district court note that Lank's testimony conflicted with th e suppression hearing testimony of four law enforcement officers, but also that it conflicted with Lank's statements under oath at his Texas guilty plea hearing.

### -3- Lank al so argues that the district court erred in failing to gran t his motion to suppress the identifications of the three Central Ban k employees. He asserts that pretrial displays of his photograph were undul y suggestive and tainted the in-court identifications. We disagree. Even assuming that the pretrial displays were unduly suggestive, as the distric t court found, in the totality of the circumstances, the displays did no t create a "'very substantial likelihood of irrepa rable misidentification.'" United States v. Patterson , 20 F.3d 801, 806 (8t h Cir.) (quoting Manson v. Brathwaite , 432 U.S. 98, 116 (1977)), cert. deni ed , 115 S. Ct. 137 (1994). Jennifer Morff, a teller who waited on Lank, testified that she was with him for about ten minutes and was so close that she could have "reached ou t and touched him." Shortly after the robbery, Morff, who had training in identifying bank robb ers, gave police officers a detailed description and assisted in a composite drawing. When the police came to her home later that evening with photos of Lank, Morff was "absolutely positive" of her identif ication of Lank. Paula Walker, another teller who assisted i n waiting on Lank and had "a good look" at him, also gave responding officer s
a detailed description of Lank. When Walker was shown photos of Lank thre e days later, she was "one hundred percent" certai n the person in the photos
was the person who robbed the bank. Linda Jansen, who had training i n identifying bank robbers, testified that when she saw photos of Lank the night of the robbery she was "absolutely sure" h e was the robber. In this case, "in light of the witnesses' opportunities to observe [Lank], their attentiveness at the time, the accuracy of the original descriptions, the lev el of certainty demonstrated in their identifications, and th e relativelyshort period[s] of time between when they observed [Lank] and when they identified [his] picture[s]," the displays "did not create a ver y substantial likelihood of irreparable misidentification." Id. at 807.

Lank also challenges his sentence. He first argues that the

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district court erred in imposing a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 based on the court's finding that Lank had committed perjury at the suppression hearing . "A defendant is subject to an obst ruction of justice enhancement under U.S.S.G. § 3C1.1 if h e testifies falsely under oath in regard to a material matter and does s o willfully rather than out of confusion or mistake." United States v

. Chadwick , 44 F.3d 713, 715 (8th Cir. 1995) (per curiam). "Such a n enhancement is warran ted if the perjury occurs at a suppression hearing." Id. " We reverse a district court's factual findings in support of a section 3C1.1 enhancement only if they are clearly erroneous." Unite d States v. Gleason , 25 F.3d 605, 608 (8th Cir.), cert. denied , 115 S. Ct. 283 (1994). In this case, the district court did not err. As previously noted, not only did Lank's suppression hearing testimony conflict with tha t of four law enforcement officers, it also conflicted with his statements under oath at his guilty plea hearing in Texas. In response to the plea court's inquiry whether there was anything to suggest that his "right to not be forced to make an involuntary statement" had been violated, Lan k responded, "No, your honor."

Lank also argues that the district court abused its discretion i n granting the governme nt's motion to depart upward under U.S.S.G. § 4A1.3, which provides for an upward departure "[i]f reliable information indicate s that t he criminal history category does not adequately reflect th e seriousness of the defendant's past criminal conduct or the likelihood tha t the defendant will commit other crimes." The di strict court did not abuse its discretion. Amon g other things, the court noted that Lank's criminal historyscore of 19 was "well above the 13-point threshold for Categor y VI," the highest criminal history category. See United States v. Nomeland , 7 F.3d 744, 747 (8th Cir. 1993). The court also noted that Lank' s offenses, which ranged from forgery to armed bank robbery, had increased in serious ness and that Lank had used drugs while in custody awaitin g trial. In sum, the district court concluded that

### On appeal Lank does not contest the reasonableness of th e 3 

### extent of the departure, see Saffeels , 39 F.3d at 838, and w e therefore do not address it.
-5- there was "no way" that Lank would ever "straighten out." In thes e circumstances, "the c ourt did not err in determining that an unrepentant, incorrigible recidivist, who poses a significant threat to the safety of the community, should have a sentence imposed which is more severe tha n that described by the sentencing guidelines." United States v. Saffeels , 39 F.3d 833, 839 (8th Cir. 1994) (internal quotation omitted); see als o United States v. Poe , 96 F.3d 333, 334 (8th Cir. 1996) (§ 4A1.3 departure
warran ted because of appellant's "pattern of continually crimina l behavior") (internal quotation omitted). 3
Accordingly, the judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.