UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4053

CARL A. EUBANKS,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge.

(CR-97-110)

Submitted: October 20, 1998

Decided: November 18, 1998

Before NIEMEYER and MICHAEL, Circuit Judges, and HALL,

Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

G. Wells Dickson, Jr., Charleston, South Carolina, for Appellant. J.

Rene Josey, United States Attorney, Brucie H. Hendricks, Assistant

United States Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Carl A. Eubanks appeals from the district court's judgment convicting him of one count of armed bank robbery, 18 U.S.C.A.

§ 2113(a)(d) (West Supp. 1998) (count one), one count of possession

of a firearm during a crime of violence, 18 U.S.C.A.§ 924(c) (West

Supp. 1998) (count two), and one count of possession of a weapon by

a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e) (West Supp. 1998)

(count three). Relying on provisions of 18 U.S.C.§ 3559 (1994), the

court sentenced Eubanks to serve concurrent life terms of imprisonment on counts one and two. Eubanks was also sentenced to a life

term on count three to be served consecutively to counts one and two.

Eubanks's attorney has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), certifying that the appeal does not present any

meritorious issues but raising two issues: whether the court erred in

failing to suppress the in-court identification of Eubanks based upon

an unduly suggestive "show-up" identification procedure and whether

the court erred in imposing a life sentence on count two. Eubanks has

filed a pro se supplemental brief raising several issues. We find no

merit to the issues concerning the "show-up" or the issues raised by

Eubanks in his pro se supplemental brief. However, we find that the

court erred in not sentencing Eubanks to a consecutive life term for

the § 924(c) conviction. In addition, the court failed to place on the

record its reasons for sentencing Eubanks to a consecutive life term

for the § 922(g)(1) conviction. Accordingly, we vacate the sentences

and remand for further proceedings consistent with this opinion.

On December 31, 1996, the Lowcountry Savings Bank in Somerville, South Carolina, was robbed at gunpoint by a man wearing a

brown mask. The robber shot a bank employee causing serious injury.

Larry George was in a car near the bank and aware that a robbery was

taking place. He observed Eubanks leaving the bank, removing a

brown mask and getting into the driver's side of a blue car. George

unsuccessfully tried to block Eubanks from driving away from the

area by moving his car directly in front of Eubanks's car. George followed Eubanks for some distance before he lost him in traffic. George

described Eubanks and the car he was driving to police. Police soon

arrested Eubanks after finding the abandoned getaway car. Two hours

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after the robbery, George was asked by police to return to the bank

and identify Eubanks. George identified Eubanks as the man he saw

leaving the bank and later identified him at trial.

A court must engage in a two-step inquiry in determining whether

identification testimony is admissible. See United States v. Wilkerson,

84 F.3d 692, 695 (4th Cir. 1996), cert. denied, ___ U.S. ___, 66

U.S.L.W. 3297 (U.S. Oct. 20, 1997) (No. 97-493). First, the defendant must establish that the identification procedure was impermissibly suggestive. See Manson v. Brathwaite, 432 U.S. 98, 110 (1977).

Second, even if the procedure is found to be unduly suggestive, the

in-court identification is valid if it was reliable. Id. at 114.

We may proceed directly to the reliability of the in-court identification without determining whether the defendant has met the threshold

requirement of suggestiveness. See Holdren v. Legursky, 16 F.3d 57,

61-62 (4th Cir. 1994). In evaluating the reliability of the identification, we consider: (1) the witness's opportunity to view the perpetrator at the time of the crime; (2) the witness's degree of attention at

the time of the offense; (3) the accuracy of the witness's prior description of the perpetrator; (4) the witness's level of certainty when identifying the defendant as the perpetrator at the time of confrontation;

and (5) the length of time between the crime and the confrontation.

See Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

We find George's in-court identification reliable. He had a good

opportunity to view Eubanks as he was leaving the bank and getting

into his car. George had a high degree of attention knowing that he

was witnessing the getaway from a bank robbery. His description of

Eubanks was accurate, and he quickly identified Eubanks when he

saw him in the back of a police car.

In his pro se supplemental brief, Eubanks raises several issues

which we find to be without merit. Eubanks was not unfairly prejudiced by testimony from the robbery victim concerning her son or by

the prosecutor's statement concerning that testimony. The testimony

was only a small part of a three-day trial. It was not a violation of 18

U.S.C. § 201(c) (1994) for the Government to promise a witness it

would advise local authorities of the witness's cooperation in

exchange for truthful testimony. Nor was it error to permit testimony

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from a paramedic with nine years' experience that Eubanks's shoulder injury could have come from an automobile accident. Eubanks

has offered no reason to find the court's decision denying his Batson

challenge clearly erroneous.1See United States v. Bynum, 3 F.3d 769,

772 (4th Cir. 1993) (court's factual findings in denying a Batson challenge reviewed for clear error). Eubanks's Miranda rights were not

violated when a police officer asked him for the name of his next of

kin.2 See, e.g., United States v. Carmona, 873 F.2d 569 (2d Cir. 1989)

(questions not intended to illicit incriminating information do not violate Miranda). The other issues raised by Eubanks are also without

merit.

We now turn out attention to the sentencing issues. Initially, we

find the court did not err in sentencing Eubanks to a life sentence for

the § 924(c) conviction. Under § 3559(c), the court was obligated to

impose the life sentence because Eubanks had two prior violent felony convictions.

We conclude, however, that the life sentence imposed upon the

§ 924(c) conviction should have run consecutively to any other sentence imposed. Section 924(c)(1) states that "the court shall not place

on probation or suspend the sentence of any person convicted of a

violation of this subsection, nor shall the term of imprisonment

imposed under this subsection run concurrently with any other term

of imprisonment including that imposed for the crime of violence or

drug trafficking crime in which the firearm was used or carried."

The Supreme Court found that § 924(c)'s consecutive-sentencing

provision is unambiguous and removes the district court's discretion

to sentence a defendant who violates § 924(c) to a concurrent sentence. See United States v. Gonzales, 520 U.S. 1, ___, 65 U.S.L.W.

4157, 4159-60 (1997). Thus, we find that Eubanks's§ 924(c) sentence should run consecutively to any other sentence imposed.

We also conclude that the consecutive life sentences imposed

under § 922(g)(1) must be vacated. The USSG§ 5G1.2(c) (1997) pro-

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1 Batson v. Kentucky, 476 U.S. 79 (1986).

2 Miranda v. Arizona, 384 U.S. 436 (1966).

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vides that "[i]f the sentence imposed on the count carrying the highest

statutory maximum is adequate to achieve the total punishment, then

the sentences on all counts shall run concurrently, except to the extent

otherwise required by law." In other words, if the count carrying the

highest statutory maximum permits a sentence at least as high as the

sentence called for by the sentencing table, such a sentence is

imposed on that count and sentences on all other counts are imposed

to run concurrently. See United States v. Mizrachi, 48 F.3d 651, 654

(2d Cir. 1995). The Sentencing Guidelines contemplate concurrent

sentences, unless consecutive sentences are necessary to achieve the

applicable guideline range. See United States v. Morgano, 39 F.3d

1358, 1366 (7th Cir. 1994).

Appellant's statutory life sentence for the robbery conviction was

as high as what was called for by the Sentencing Guidelines. There

is no statutory requirement that Appellant's life sentence for the

weapon possession conviction be served consecutively. Because the

Sentencing Guidelines require that concurrent sentences be imposed

in situations such as the instant case, courts have held that the decision to have the sentences run consecutively is a departure from the

Sentencing Guidelines. See United States v. Hui , 83 F.3d 592, 593-94

(2d Cir. 1996); United States v. Quinones, 26 F.3d 213, 216 (1st Cir.

1994).

However, courts may impose consecutive sentences despite

§ 5G1.2(c). See 18 U.S.C. § 3584(a) (1994) ("Multiple terms of

imprisonment imposed at the same time run concurrently unless the

court orders or the statute mandates that the terms are to run consecutively."). Similar to other departures from the Sentencing Guidelines,

the reasons for departure must be put on the record. See United States

v. Candelario-Cajero, 134 F.3d 1246, 1249 (5th Cir. 1998); Hui, 83

F.3d at 594; Quinones, 26 F.3d at 216.

In the instant case, there is no discussion in either the presentence

investigation report or the sentencing transcript regarding a consecutive sentence for the weapon possession conviction. Nor did the court

at sentencing explain its reason for imposing the consecutive sentence. Because the court ordered the weapon possession sentence to

be served consecutively to the other two sentences without stating its

reasons on the record, we vacate the sentence and remand for the

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court to clarify whether it intended this sentence to run consecutively

to the other two sentences and, if so, to state its reasons on the record.

Based on the foregoing, we affirm Eubanks's convictions, but

vacate his sentences and remand to the district court for resentencing.

On remand, the district court should order that the life sentence

imposed for the § 924(c) conviction be served consecutively to any

other sentence. In addition, the district court should clarify whether

it intends to sentence Eubanks to a consecutive life sentence for the

§ 922(g)(1) conviction. If so, it should state the reasons for the departure on the record. 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.

VACATED AND REMANDED

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