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The Honorable William R. Wilson, Jr., United States District Judge for the

Eastern District of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1992

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Marlin Lynn Brown, *

* [PUBLISHED]

Appellant. *

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Submitted: May 6, 2005

Filed: May 24, 2005

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Before BYE, RILEY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Following a trial, a jury convicted Marlin Lynn Brown (Brown) of (1) robbing

a bank and assaulting and putting in jeopardy the life of another by using a dangerous

weapon, in violation of 18 U.S.C. § 2113(a), (d) (Count 1); (2) knowingly

brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) (Count 2); and (3) being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1), 924(e) (Count 3). The district court1

 sentenced

Brown to concurrent prison terms of 262 months on Count 1 and 120 months on
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Count 3; a consecutive prison term of 84 months on Count 2; concurrent supervised

release terms of 5 years on Counts 1 and 3, and 3 years on Count 2; and victim

restitution totaling $3848. Brown appeals his convictions and the sentences imposed.

We affirm.

For reversal, Brown (1) challenges the district court’s denial of his motion to

suppress evidence seized during a warrantless search of the residence of Brenda

Lewis (Lewis); (2) argues the trial evidence was insufficient to support his

convictions; (3) contends his trial counsel provided ineffective assistance; and (4)

raises sentencing issues.

We agree with the district court that Brown did not have standing to challenge

the search of Lewis’s residence. There was no evidence Brown had a reasonable

expectation of privacy in Lewis’s residence, because he was not present during the

search, did not live at the residence, and did not have a key to the residence. See

United States v. Mendoza, 281 F.3d 712, 715 (8th Cir. 2002) (factors to examine in

determining reasonable expectation of privacy include whether individual had

possessory interest, whether individual could exclude others, and whether individual

had a key); United States v. Miner, 108 F.3d 967, 969 (8th Cir. 1997) (holding

defendant could not contest seizure of drug-filled sock from home of his drug-dealing

partner, as defendant had no legitimate expectation of privacy in home).

As to his convictions, Brown contends the government failed to prove he was

the bank robber. Viewing the evidence in the light most favorable to the jury’s

verdict, and accepting all reasonable inferences drawn from the evidence that support

the jury’s verdict, United States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004), we

conclude sufficient evidence supports the conviction, see United States v. Dabney,

367 F.3d 1040, 1042 (8th Cir. 2004) (noting “[w]e will reverse only if no reasonable

jury could have found [defendant] guilty”). Specifically, the jury could have

reasonably concluded Brown was the individual who robbed Eagle Bank based on the
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following evidence: (1) officers testified a tracking signal from a device that the bank

teller placed with the money in the robber’s white plastic bag led them to a man

present in Lewis’s neighborhood who then entered Lewis’s house; (2) two witnesses

in Lewis’s house that afternoon testified Brown entered Lewis’s residence, he

appeared to be “moving pretty fast” and was out of breath, and he entered the back

bedroom of the house and then left; (3) a firearm matching the description of that

used during the robbery, and clothing similar to what the robber had worn, were

found in the back bedroom; and (4) a fingerprint with an eleven-point match to

Brown’s right thumb print was found on the plastic bag containing the stolen money

and tracking device. The jury was entitled to disbelieve witness testimony that may

have been inconsistent with a finding that Brown was the robber, see United States

v. Cole, 380 F.3d 422, 425 (8th Cir. 2004) (“It is the task of the jury to evaluate the

credibility of witnesses.”), and eyewitness identification is not required to support a

conviction, see United States v. Crenshaw, 359 F.3d 977, 993 (8th Cir. 2004)

(holding “[t]here is no requirement of eyewitness identification to support a

conviction” and further noting “it was for the jury to choose between the witnesses

or to reconcile their stories”).

Brown’s claims that his counsel was constitutionally ineffective in various

ways should be deferred to post-conviction proceedings, in which an appropriate

record may be developed. See Cook, 356 F.3d at 919-20.

Finally, we find no error in the calculation or imposition of Brown’s sentence.

First, the district court’s determination that Brown had two qualifying crimes of

violence, which made him subject to the career-offender Guideline, see U.S.S.G.

§ 4B1.1, did not implicate Brown’s constitutional rights under United States v.

Booker, 125 S. Ct. 738, 756 (2005) (reaffirming that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt”). See
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United States v. Marcussen, 403 F.3d 982 (8th Cir. 2005) (rejecting “the argument

that the nature of prior conviction is to be treated differently from the fact of a prior

conviction”; once the sentencing court determines a prior conviction exists, it is a

legal question whether a conviction meets the “crime of violence” definition of

U.S.S.G. § 4B1.2). In addition, the district court correctly determined that the prior

burglary convictions were crimes of violence. See U.S.S.G. § 4B1.2 (a)(2) (for

purpose of career-offender Guideline, “crime of violence” means, inter alia, “any

offense under federal or state law, punishable by imprisonment for a term exceeding

one year, that . . . is burglary of a dwelling”); United States v. Grummitt, 390 F.3d

569, 571 (8th Cir. 2004) (per curiam) (holding burglary of dwelling, even if

temporarily unoccupied, constitutes a crime of violence). Moreover, we note the

district court properly considered these offenses to be separate because, even though

Brown was convicted of them on the same date, there was an intervening arrest. See

U.S.S.G. §§ 4B1.2(c)(2) (“two prior felony convictions” means, in part, sentences for

at least two qualifying convictions are counted separately in computing criminal

history); 4A1.2(a)(2) (prior sentences imposed in unrelated cases are counted

separately); 4A1.2 cmt. n.3 (“Prior sentences are not considered related if they were

for offenses that were separated by an intervening arrest (i.e., the defendant is arrested

for the first offense prior to committing the second offense).”). Because classification

as a career offender automatically results in a criminal history classification of

Category VI, see U.S.S.G. § 4B1.1(b), we will not consider whether errors were made

in calculating Brown’s criminal history points. See United States v. Darden, 70 F.3d

1507, 1548-49 n.17 (8th Cir. 1995) (declining to review argument which would not

affect sentence).

Accordingly, we affirm the judgment of the district court. We deny Brown’s

motion to amend or to supplement.

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