The Honorable 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, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS

SHEPPARD ARNOLD, Circuit Judge.

___________

HENLEY, Senior Circuit Judge.

Ronald A. Lank appeals from a judgment of the district court entered 1

upon a jury verdict finding him guilty of armed bank robbery and interstate

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 apprehended

later that day after officers on horseback found him in a wooded area.

After he was arrested, he signed Miranda waivers and confessed not only

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 the

Missouri robbery. 

Although Lank pleaded guilty to the Texas robbery, he pleaded not

guilty to the Central Bank robbery and transportation charges. Before

trial on the charges, Lank moved to suppress the statements he made

following his Texas arrest. He also moved to suppress the pre-trial

identifications of three Central Bank employees. Following a suppression

hearing, the district court denied the motions, and the statements and

identifications were introduced at trial. In addition, 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 sentencing range of 130 to 162

months. The district court, imposing an obstruction of justice enhancement

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 robbery conviction and a concurrent 120 months on the unlawful

transportation conviction, to be served consecutively to a 105- month

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 hearing Lank testified that he

gave the statements only because he had been beaten, dragged behind a

horse, and threatened, the district court rejected his testimony, finding

it was incredible. We do not disturb this credibility finding. Not only

did the district court note that Lank's testimony conflicted with the

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. 
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Lank also argues that the district court erred in failing to grant

his motion to suppress the identifications of the three Central Bank

employees. He asserts that pretrial displays of his photograph were unduly

suggestive and tainted the in-court identifications. We disagree. Even

assuming that the pretrial displays were unduly suggestive, as the district

court found, in the totality of the circumstances, the displays did not

create a "'very substantial likelihood of irreparable misidentification.'"

United States v. Patterson, 20 F.3d 801, 806 (8th Cir.) (quoting Manson v.

Brathwaite, 432 U.S. 98, 116 (1977)), cert. denied, 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 out

and touched him." Shortly after the robbery, Morff, who had training in

identifying bank robbers, 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

identification of Lank. Paula Walker, another teller who assisted in

waiting on Lank and had "a good look" at him, also gave responding officers

a detailed description of Lank. When Walker was shown photos of Lank three

days later, she was "one hundred percent" certain the person in the photos

was the person who robbed the bank. Linda Jansen, who had training in

identifying bank robbers, testified that when she saw photos of Lank the

night of the robbery she was "absolutely sure" he 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

level of certainty demonstrated in their identifications, and the

relatively short period[s] of time between when they observed [Lank] and

when they identified [his] picture[s]," the displays "did not create a very

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 obstruction of justice enhancement under U.S.S.G. § 3C1.1 if he

testifies falsely under oath in regard to a material matter and does so

willfully rather than out of confusion or mistake." United States v.

Chadwick, 44 F.3d 713, 715 (8th Cir. 1995) (per curiam). "Such an

enhancement is warranted 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." United

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 that

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, Lank

responded, "No, your honor." 

Lank also argues that the district court abused its discretion in

granting the government's motion to depart upward under U.S.S.G. § 4A1.3,

which provides for an upward departure "[i]f reliable information indicates

that the criminal history category does not adequately reflect the

seriousness of the defendant's past criminal conduct or the likelihood that

the defendant will commit other crimes." The district court did not abuse

its discretion. Among other things, the court noted that Lank's criminal

history score of 19 was "well above the 13-point threshold for Category

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 seriousness and that Lank had used drugs while in custody awaiting

trial. In sum, the district court concluded that
 On appeal Lank does not contest the reasonableness of the

3

extent of the departure, see Saffeels, 39 F.3d at 838, and we

therefore do not address it.

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there was "no way" that Lank would ever "straighten out." In these

circumstances, "the court 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 than

that described by the sentencing guidelines." United States v. Saffeels,

39 F.3d 833, 839 (8th Cir. 1994) (internal quotation omitted); see also

United States v. Poe, 96 F.3d 333, 334 (8th Cir. 1996) (§ 4A1.3 departure

warranted because of appellant's "pattern of continually criminal

behavior") (internal quotation omitted).3

Accordingly, the judgment is affirmed.

A true copy.

Attest:

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