FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 22, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14024

Non-Argument Calendar

________________________

D. C. Docket No. 07-00072-CR-2-RDP-PWG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODERICK CORLION PEARSON,

a.k.a. Bullet,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(January 22, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Roderick Corlion Pearson appeals from his 564-month sentence imposed for

convictions for armed bank robbery, 18 U.S.C. § 2113(a) and (d) (Count 1);

brandishing a firearm during and in relation to a crime of violence, 18 U.S.C.
§ 924(c)(1)(A)(ii) (Count 2); armed bank robbery, 18 U.S.C. § 2113(a) and (d)

(Count 3); brandishing a firearm during and in relation to a crime of violence,

18 U.S.C. § 924(c)(1)(C)(i) (Count 4); and being a felon in possession of a firearm,

18 U.S.C. § 922(g)(1) (Count 5). Pearson pled guilty to Counts 3, 4 and 5 relating

to a bank robbery committed on January 25, 2007, and a jury convicted him of

Counts 1 and 2 relating to a bank robbery committed on January 12, 2007. On

appeal, Pearson challenges: (1) the district court’s denial of his motion in limine

and objections at his trial, pursuant to Fed. R. Evid. 404(b), to the introduction of

extrinsic evidence of the January 25, 2007 robbery; and (2) his sentence on the

grounds that his prior conviction should not have been considered a crime of

violence for purposes of U.S.S.G. § 4B1.2(a), and that his sentence was

unreasonable under 18 U.S.C. § 3553(a). After careful review, we affirm.

We review the district court’s admission of prior crimes or bad acts under

Fed. R. Evid. 404(b) for abuse of discretion. United States v. Ellisor, 522 F.3d

1255, 1267 (11th Cir. 2008). In applying the standard, we will reverse only if an

erroneous ruling resulted in “substantial prejudice” and will affirm “unless the

district court has made a clear error of judgment or has applied an incorrect legal

standard.” Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th

Cir. 2004) (quotations omitted). We review the district court’s interpretation and

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application of the sentencing guidelines de novo. United States v. Gibson, 434

F.3d 1234, 1243 (11th Cir. 2006). The decision to classify a defendant as a career

offender is a question of law also reviewed de novo. Id. Furthermore, we review a

sentence a district court imposes for “reasonableness,” which “merely asks whether

the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189

(11th Cir. 2008) (quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).

First, we reject Pearson’s claim that the district court abused its discretion

under Fed. R. Evid. 404(b) by admitting evidence of an extrinsic bank robbery

committed by Pearson on January 25, 2007. Generally, “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith.” Fed. R. Evid. 404(b). Thus, “[e]vidence

of extrinsic offenses is inadmissible to prove that the accused has the propensity to

commit the crime charged.” United States v. Veltmann, 6 F.3d 1483, 1498 (11th

Cir. 1993). Extrinsic evidence “may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.” Fed. R. Evid. 404(b).

To be admissible under Rule 404(b), “(1) the evidence must be relevant to

an issue other than the defendant’s character; (2) there must be sufficient proof so

that the factfinder could find that the defendant committed the extrinsic act; and

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(3) the evidence must possess probative value that is not substantially outweighed

by undue prejudice.” United States v. Perez, 443 F.3d 772, 779 (11th Cir. 2006).

Unfair prejudice, however, can be mitigated by limiting instructions from the court.

United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993).

Pearson focuses exclusively on the third prong of Perez test, asserting in his

brief that “it seems as if the only issue for this Court to determine is whether the

probative value of the 404(b) evidence to prove ‘identity’ substantially outweighs

the risk of ‘unfair prejudice’ to the Defendant.” When evidence is introduced to

prove identity, its probity “depends upon both the uniqueness of the modus

operandi and the degree of similarity between the charged crime and the uncharged

crime.” United States v. Myers, 550 F.2d 1036, 1044-45 (5th Cir. 1977). While

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“it is not necessary that the charged crime and the other crimes be identical in

every detail[,] they must possess a common feature or features that make it very

likely that the unknown perpetrator of the charged crime and the known perpetrator

of the uncharged crime are the same person.” Id. at 1045. See also United States

v. Lail, 846 F.2d 1299, 1301 (11th Cir. 1988) (“the likeness of the offenses is the

crucial consideration. The physical similarity must be such that it marks the

offenses as the handiwork of the accused.”) (quotation omitted).

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we 1

adopted as binding precedent decisions of the former Fifth Circuit issued before October 1, 1981.

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The record here shows that the physical similarities between the January 12

and January 25 bank robberies were sufficiently similar to mark them as the

“handiwork” of the same individual and, thus, demonstrate a modus operandi.

Lail, 846 at 1301. Not only did both robberies involve a lone perpetrator wearing a

coat and hat to rob a bank with a black handgun who told the bank’s occupants to

“get down” and placed the money in a black zippered backpack, but also, in both

robberies, the robber wore a camouflage bandana over his face and light-colored

gloves, jumped over the tellers’ counters, and escaped in a vehicle without a

license plate -- which in total, amounts to a sufficiently unique modus operandi.

Furthermore, Pearson presented no evidence of dissimilarities between the two

robberies. Thus, the evidence of the January 25 robbery was sufficiently probative

of the identity of the perpetrator of the January 12 robbery.

Moreover, the probative value of this evidence was not substantially

outweighed by undue prejudice. Due to conflicting testimony, the identity of the

January 12 perpetrator remained at issue throughout the trial, and the modus

operandi of the January 25 robber remained relevant to the identity of the January

12 robber. Furthermore, the district court read limiting instructions to the jury at

two points during trial -- before the January 25 witnesses testified and at the close

of all the evidence -- which greatly diminished the risk of undue prejudice.

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Diaz-Lizaraza, 981 F.2d at 1225. Therefore, the district court did not abuse its

discretion when it admitted the extrinsic evidence of the January 25 robbery.

Next, we find no merit to Pearson’s claim that the district court erred in

imposing the career-offender sentencing enhancement based in part on his prior

conviction for discharging a firearm into an unoccupied vehicle. Under the

Sentencing Guidelines, a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time the

defendant committed the instant offense of conviction; (2) the instant

offense of conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has at least two

prior felony convictions of either a crime of violence or a controlled

substance offense.

U.S.S.G. § 4B1.1(a). U.S.S.G. § 4B1.2(a) defines a “crime of violence” as:

any offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that --

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

To determine if a crime is a “crime of violence,” a court should “look only to

the elements of the convicted offense, and not to the conduct underlying the

conviction.” United States v. Young, 527 F.3d 1274, 1277 (11th Cir. 2008)

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(quotation omitted). We have “broadly interpreted § 4B1.2(a)(2)’s definition to

include crimes that do not fit neatly into a category of hostile, aggressive acts[]”

but do involve “a serious potential risk of physical injury . . . . ” United States v.

McGill, 450 F.3d 1276, 1280 (11th Cir. 2006) (collecting cases). The burden of

proof for establishing that a sentence enhancement is warranted lies with the

prosecution, and the district court must insure that the prosecution carries its

burden of proof. Young, 527 F.3d at 1277.

Pearson was previously convicted of violating Ala. Code § 13A-11-61(a),

which provides that “[n]o person shall shoot or discharge a firearm, explosive or

other weapon which discharges a dangerous projectile into any occupied or

unoccupied dwelling or building or railroad locomotive or railroad car, aircraft,

automobile, truck or watercraft in this state.” Ala. Code § 13A-11-61(a). A person

who violates this section with regard to an unoccupied vehicle commits a Class C

felony, as opposed to a Class B felony with regard to an occupied vehicle. Ala.

Code § 13A-11-61(b) and (c). We have held in an unpublished opinion that a

conviction for a violation of Ala. Code § 13A-11-61(a) was a crime of violence

within the meaning of U.S.S.G. § 4B1.2(a)(2), because discharging a firearm into a

dwelling -- occupied or unoccupied -- involved a potential risk of physical injury.

United States v. Rabb, 248 F. App’x 133, 134 (11th Cir. 2007) (unpublished). In

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light of the analysis in Rabb and our broad interpretation of U.S.S.G.

§ 4B1.2(a)(2), the district court did not err in determining that Pearson’s conviction

for discharging a firearm into an unoccupied vehicle was a crime of violence and,

thus, correctly adjusted Pearson’s offense level pursuant to U.S.S.G. § 4B1.1.

Finally, we are unpersuaded by Pearson’s argument that his sentence was

substantively unreasonable. In reviewing sentences for reasonableness, we

typically perform two steps. Pugh, 515 F.3d at 1190. First, we must “‘ensure that

the district court committed no significant procedural error, such as 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.’”

Id. (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)). If we conclude that

2

the district court did not procedurally err, we must consider the “‘substantive

The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 2

history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the

offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect

the public; (5) the need to provide the defendant with educational or vocational training or medical

care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent

policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing

disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). According to

the statute, the district court shall impose a sentence that is sufficient, but not greater than necessary,

to comply with the purposes of the § 3553(a) factors. Id.

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reasonableness of the sentence imposed, under an abuse-of-discretion standard,’”

based on the “‘totality of the circumstances.’” Id. (quoting Gall, 128 S. Ct. at 597).

We recognize that “there is a range of reasonable sentences from which the

district court may choose.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005). In addition, the district court should acknowledge that it has considered the

§ 3553(a) factors, but it need not explicitly discuss each of them. United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). “The party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both th[e] record and the factors in section 3553(a).” United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (quotations omitted).

In determining Pearson’s sentence, the district court discussed several of the

18 U.S.C. § 3553(a) factors, including the need to provide restitution to the

victims, the nature and circumstances of the offense, the history and characteristics

of the defendant, the need for just punishment for the offense, and the sentencing

guidelines. The court imposed a sentence below the sentencing guidelines range,

acknowledging that an in-range sentence “would not achieve the statutory purposes

of sentencing and . . . would essentially be too great a punishment in this case.”

Because the district court sentenced Pearson below the guidelines range and

considered the § 3553(a) factors in detail, Pearson cannot satisfy his burden of

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establishing that his sentence was unreasonable. In addition, the sentence was not

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greater than necessary, as the district court took into account the seriousness of the

offense and the need to provide for just punishment, both of which are proper

considerations under § 3553(a)(2).

AFFIRMED.

See Rita, 127 S.Ct. at 2462 (holding that a court of appeals may afford a presumption of

3

reasonableness to a within-Guidelines sentence); United States v. Campbell, 491 F.3d 1306, 1314

n. 8 (11th Cir.2007) (noting that, although we have not normally afforded a within-Guidelines

sentence a presumption of reasonableness, the Rita decision calls that policy into question).

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