United States Court of Appeals

For the Eighth Circuit

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No. 12-2542

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Iralee E. French, Jr., also known as Frisco

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: February 12, 2013

 Filed: July 9, 2013

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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

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RILEY, Chief Judge.

In a sixteen-day period, Iralee E. French, Jr. robbed the same Kansas City,

Missouri, bank twice. French held a crying teller at gunpoint in the first robbery and

shot a security guard during the second. A jury convicted French of conspiracy; bank

robbery; using, carrying or brandishing a firearm during a crime of violence;

attempted bank robbery; and use or discharge of a firearmduring a crime of violence. 
The district court sentenced French to consecutive sentences totaling 1044 months

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(87 years) imprisonment. French appeals his conviction and sentence. Having

jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. BACKGROUND

On February 9, 2006, at approximately 6:40 a.m., French, wearing a mask and

armed with a Mossberg shotgun, and his partner, Thirplus Moose, confronted

Chynetta Adams, a teller at a United Missouri Bank (UMB) branch in Kansas City,

Missouri, as she arrived for work and exited her car in an underground parking

garage. French and Moose led Adams to the bank at gunpoint. Adams let the robbers

in the bank, but was unable to comply with their demand to open the vault.

After taking approximately $8,200 from Adams’s teller drawer, French and

Moose forced Adams back to the parking garage. French pointed his shotgun at

Adams and repeatedly ordered her to get in the trunk of her car. Screaming and

crying, Adams refused. When French and Moose gave up and fled in Adams’s car,

Adams returned to the bank and called the police.

On February 24, 2006, French and Moose returned to the same bank at

approximately 6:30 a.m. to rob it again. As seventy-year-old security guard Dwight

Mayhugh arrived in the UMB parking garage, French shot Mayhugh with a shotgun

through the window of Mayhugh’s vehicle fromapproximately eight to ten feet away.

The shotgun blast struck Mayhugh in the neck, chest, and shoulder, shattering his

right upper arm. The robbers then forced Mayhugh from his vehicle so he could let

them in the bank. When Mayhugh proved unable to provide French and Moose

access to any cash, they forced Mayhugh back to the garage and stole his vehicle.

The Honorable Gary A. Fenner, United States District Judge for the Western 1

District of Missouri, adopting the report and recommendation of the Honorable

Robert E. Larsen, United States Magistrate Judge for the Western District of

Missouri.

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Bleeding heavily from the shotgun wound, Mayhugh sought help at the

convenience store across the street from the parking garage. Paramedics arrived and

transported Mayhugh to Truman Medical Center where he underwent surgery. As

Mayhugh was rushed into an operating room, an emergency physician who had

examined Mayhugh briefly before surgery advised a police detective that he did not

believe, at that point, that Mayhugh’s injuries were immediately life threatening. 

Mayhugh tragically died the next day from complications following surgery.

Concluding complications from the shotgun wound caused Mayhugh’s death, the

medical examiner declared Mayhugh’s death a homicide. French maintainsimproper

medical treatment by a third-year resident at the hospital caused Mayhugh’s death. 

After Mayhugh died, French decided to “stay low” in St. Louis, Missouri, until

things calmed down. French evaded arrest for almost two-and-a-half years. In

August 2008, new leads in the investigation led law enforcement officers to focus on

French. On August 27, 2008, officers arrested French in St. Louis for an outstanding

warrant and traffic tickets. After advising French of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966), and obtaining a signed waiver, the officersinterviewed

French about the robberies and shooting. Hours later, French signed a formal

statement, admitting he participated in both robberies and intentionally shot

Mayhugh. Officers did not electronically record French’s interview, even though

recording equipment was available elsewhere in the building. 

On September 23, 2008, a grand jury charged French in a nine-count

indictment with conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371 

(Count 1); armed bank robbery with forcible restraint, in violation of 18 U.S.C.

§§ 2113(a), (e), and 2 (Count 2); three counts of using, carrying, or brandishing a

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

2 (Counts 3, 7, and 9); killing a person while committing attempted armed bank

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robbery, in violation of 18 U.S.C. §§ 2113(a), (e), and 2 (Count 4); using, carrying,

and discharging a firearm during a crime of violence causing murder, in violation of

18 U.S.C. §§ 924(c)(1)(A)(iii), (j)(1), and 2 (Count 5); and two counts of carjacking,

in violation of 18 U.S.C. §§ 2119 and 2 (Counts 6 and 8).

On October 16, 2009, French moved to suppress his statement to the police,

arguing (1) his statement was involuntary; (2) his Miranda waiver was invalid; and

(3) the officers’ failure to record his statement violated his due process rights. On

January 7, 2010, after an evidentiary hearing, the magistrate judge recommended the

district court deny French’s motion to suppress. Adopting the magistrate judge’s

report and recommendation over French’s objection,the district court denied French’s

motion.

After a five-day trial beginning on July 18, 2011, a jury convicted French of

conspiracy (Count 1); armed bank robbery (Count 2); using, carrying, or brandishing

a firearm during a crime of violence (Count 3); and the lesser included offenses of

attempted bank robbery (Count 4); and using a firearm during a crime of violence

(Count 5). The jury acquitted French of causing Mayhugh’s death and the

carjacking-related offenses (Counts 6, 7, 8, and 9).

On June 26, 2012, the district court held a sentencing hearing at which French,

through counsel, argued the presentence investigation report (PSR) incorrectly

applied United States Sentencing Guidelines (U.S.S.G. orGuidelines) § 2B3.1(c)(1)’s

cross reference to U.S.S.G. § 2A1.1 for first-degree murder, which raised French’s

base offense level to 43. At sentencing, French maintained Mayhugh died as a result

of medical malpractice following surgery, not as a result of being shot by French. 

The PSR included an expert report—prepared in connection with a civil malpractice

action against Mayhugh’s medical providers—indicating Mayhugh would have

survived his wounds if not for the medical providers’ mistakes, but French

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complained the PSR did not include defense exhibits containing the deposition

testimony from the malpractice action. 

The district court, over the government’s objection, received French’s exhibits

into evidence for purposes of argument as to a reasonable and appropriate sentence

under 18 U.S.C. § 3553(a). Stating it had reviewed the expert’s report, the district

court overruled French’s objection to the application of U.S.S.G. § 2B3.1(c)(1)’s

first-degree murder cross reference because French intentionally shot and killed

Mayhugh in the course of committing armed robbery. See 18 U.S.C. § 1111 (defining

first-degree murder). The district court determined the evidence established Mayhugh

would not have been hospitalized and facing a difficult medical situation if not for

French intentionally shooting him.

Relying on a mitigation video prepared for the court, French requested an

aggregate sentence of forty-two years based on his young age at the time of the

offense (eighteen) and “genuine remorse.” The district court denied French’s request

for leniency, speaking at length about French’s selfishness and “callous disregard”

for Adams and Mayhugh during the robberies—French was “willing to kill people

and terrorize people for a few thousand dollars.” Emphasizing that French

intentionally “shot to kill” Mayhugh, the district court concluded French was “a threat

to society.” After considering the § 3553(a) factors, the district court imposed

consecutive sentences totaling 1044 months (87 years) imprisonment. French

challenges the admission of his unrecorded statement and his sentence.

II. DISCUSSION

A. Motion to Suppress

French argues “[t]he [district] court erred by admitting Mr. French’s custodial

statement into evidence when the police failed to memorialize it by video or audio

recording despite ample resources and opportunity to do so, which violated his right

to due process under the Fifth Amendment.” French’s due process argument is

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foreclosed by our decision in United States v. Williams, 429 F.3d 767, 772 (8th Cir.

2005), in which we held the Constitution does not mandate electronically recording

a defendant’s custodial interrogation. See also Jenner v. Smith, 982 F.2d 329, 331

n.2 (8th Cir. 1993) (noting “other circuits have held that incriminating statements are

not inadmissible simply because the police failed to record or take notes of the

conversations”). The district court properly denied French’s motion to suppress. 

B. Sentencing

1. Procedural Error

French contends the district court procedurally erred in imposing his sentence

by (1) disregarding the “parsimony principle,” (2) failing to consider the sentencing 2

disparity between French and Moose, (3) concluding French “posed a threat to public

safety,” and (4) applying the Guidelines cross reference for first-degree murder

without addressing testimony that medical malpractice caused Mayhugh’s death. “In

reviewing a sentence for procedural error, we review the district court’s factual

findings for clear error and its application of the guidelines de novo.” United States

v. Barker, 556 F.3d 682, 689 (8th Cir. 2009). “‘Procedural error’ includes ‘failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.’” 

United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting Gall

v. United States, 552 U.S. 38, 51 (2007)). 

The so-called “parsimony principle” refersto the overarching requirement that 2

the district court “impose a sentence sufficient, but not greater than necessary,”

18 U.S.C. § 3553(a), to achieve the statutory goals of sentencing. See United States

v. Young, 644 F.3d 757, 762 (8th Cir. 2011).

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French’s claims of procedural error are unavailing. As noted by the

government, French’s assertion that the district court failed to “recognize the

parsimony principle” is “typically associated with substantive error” and generally

does not serve as an independent basis for procedural error. United States v. Luleff,

574 F.3d 566, 569 (8th Cir. 2009). In any event, to avoid procedural error, a

sentencing court “need not specifically respond to every argument made by the

defendant, or mechanically recite each § 3553(a) factor.” United States v. Struzik,

572 F.3d 484, 487 (8th Cir. 2009) (internal citations omitted). The sentencing court

must “set forth enough to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

Having thoroughly reviewed the sentencing record in this case, we are satisfied

the district court duly considered the evidence, French’s arguments, and the § 3553(a)

sentencing factors in imposing and explaining French’s sentence. Immediately before

sentencing French, the district court heard argument from French’s counsel, which

included a discussion of the “parsimony principle” and an explanation as to why

French’s youth, remorse, and conduct after the robberies, as well as the expected

sentencing disparity between French and Moose, justified a lower sentence. The

district court also reviewed French’s sentencing memorandum addressing the same

issues and took a recess to view French’s mitigation video—evidence the district

court described as moving. After expressly “taking into consideration all the factors

set forth under 18 U.S.C., Section 3553,” the district court imposed a sentence

specifically justified in reference to nearly all of those factors, describing the

“horrendous” nature and circumstances of French’s crimes, French’s lack of direction

and self-control, the need to deter such serious crimes, and the need to protectsociety

from French by imposing “a reasonable and appropriate sentence” under the

circumstances. See 18 U.S.C. § 3553(a). The district court did not err. 

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We also reject French’s suggestion that the district court procedurally erred by

basing its sentence on a fact French asserts is “clearly erroneous”—namely, that

French posed “a ‘threat to society.’” French planned and executed two armed

robberies in sixteen days, attempted to force a terrified teller into the trunk of her car

at gunpoint to escape the first robbery, and during the second robbery,shot a security

guard with a shotgun at close range before dragging him, bleeding, through the bank. 

The district court did not clearly err in finding French was a threat to society.

French’s last procedural challenge is to the district court’s application of the

first-degree murder cross reference in the sentencing Guideline for robbery.

Section 2B3.1(c)(1) directs the sentencing court to apply§ 2A1.1(a)—the first-degree

murder guideline—“[i]f a victimwas killed under circumstancesthat would constitute

murder under 18 U.S.C. § 1111.” Section 1111(a) defines first-degree murder to

include “unlawful killing of a human being with malice aforethought . . . committed

in the perpetration of, or attempt to perpetrate, any . . . robbery.” Malice may be

shown not only by “proof of a subjective intent to kill,” but also “by evidence of

conduct which is ‘reckless and wanton, and a gross deviation from a reasonable

standard of care, of such a nature that [the factfinder] is warranted in inferring that

defendant was aware of a serious risk of death or serious bodily harm.’” See United

States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978) (quoting United States v. Cox,

509 F.2d 390, 392 (D.C. Cir. 1974)). 

French contends the circumstances surrounding Mayhugh’s death do not

support the district court’s application of § 2A1.1(a) because the evidence from the

medical malpractice case “established the shotgun injury was completely unrelated

to the cause of Mayhugh’s death.” We disagree. 

“The cross reference in § 2B3.1(c)(1) to the first degree murder guideline in

§ 2A1.1 requires a sentencing court to consider the full context of the defendant’s

offense and to account for any killing in the course of a federal robbery . . . . This

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permits sentencing consideration of the total extent of injury inflicted upon anyone

victimized by the offense.” United States v. Weasel Bear, 356 F.3d 839, 841 (8th Cir.

2004). “The language of § 2B3.1(c)(1) is intended to ensure that sentences for

killings committed in the course of a federal robbery reflect the seriousness of the real

offense conduct and provide just punishment for the offenses.” Id. 

The district court, based upon a preponderance of the evidence—including

testimony from the medical examiner that complications from the shotgun wound

caused Mayhugh’s death and a conflicting opinion fromFrench’s expert—determined

the circumstances of Mayhugh’s death qualified French for § 2B3.1(c)(1)’s cross

reference for first-degree murder. In reaching that conclusion, the district court found

French intentionally and maliciously “shot to kill” “Mr. Mayhugh with a shotgun at

close range without any regard for Mr. Mayhugh’s life or well-being, and that Mr.

Mayhugh clearly would not have been hospitalized and would not have been faced

with the complicated difficult medical circumstances that [led to his death] . . .

without Mr. French’s actions.” We detect no error in the district court’s application

of the cross reference. The district court properly “consider[ed] the full context of

[French’s] offense,” Weasel Bear, 356 F.3d at 841, accounted for “the total extent of”

Mayhugh’s injury and tragic death, id., and ensured French’s sentence reflected the

seriousness of intentionally shooting Mayhugh in such “a deadly fashion.”

B. Substantive Reasonableness

In the absence of significant procedural error, we review the substantive

reasonableness of the sentence imposed for an abuse of discretion. Feemster, 572

F.3d at 461. “Substantive appellate review in sentencing cases is narrow and

deferential; it will be the unusual case when we reverse a district court

sentence—whether within, above, or below the applicable Guidelines range—as 

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substantively unreasonable.” United States v. Kelley, 652 F.3d 915, 918 (8th Cir.

2011) (quoting Feemster, 572 F.3d at 464) (internal marks omitted). 

“The decision to impose a consecutive sentence is also reviewed for

reasonablenesssimilar to an abuse of discretion standard.” Id. (quoting United States

v. Benton, 627 F.3d 1051, 1055-56 (8th Cir. 2010)) (internal marks omitted). “A

district court abuses its discretion when it fails to consider a relevant factor, gives

significant weight to an irrelevant or improper factor, or considers only appropriate

factors but nevertheless commits a clear error of judgment by arriving at a sentence

that lies outside the limited range of choice dictated by the facts of the case.” United

States v. Jones, 509 F.3d 911, 913 (8th Cir. 2007). “If the defendant’s sentence is

within the Guidelines range, then we may, but are not required to, apply a

presumption of reasonableness.” Feemster, 572 F.3d at 461 (quoting Gall, 532 U.S.

at 51) (internal marks omitted). 

French asserts his sentence was “greater than necessary” to satisfy the

sentencing goals of § 3553(a) and is substantively unreasonable because the district

court failed “to accord any weight to [his] youth, remorse, history of severe

depression, and extremely disadvantaged upbringing.” The record belies French’s

assertion. 

As noted above, the district court carefully considered French’s asserted

grounds for mitigation and was even moved by French’s mitigation evidence. Yet the

district court determined the serious nature and “horrendous” circumstances of

French’s crimes and his willingness “to kill people and terrorize people for a few

thousand dollars” not only outweighed the mitigating factors, but also warranted a

severe sentence to deter such “callous” conduct and protectsociety fromFrench. The

district court further decided French demonstrated a lack of remorse and an

unwillingnessto take responsibility for his actions by evading capture for two-and-ahalf years after Mayhugh’s death. Although the consecutive sentences the district

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court imposed for French’s various crimes unquestionably result in a long prison

term, this long term is not substantively unreasonable under the tragic and calloused

circumstances of French’s crimes.

III. CONCLUSION

Finding no error, we affirm French’s conviction and sentence. 

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