UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5655

ANTHONY GEORGE ROSS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Robert D. Potter, Senior District Judge.

(CR-94-5-P)

Submitted: January 30, 1996

Decided: February 16, 1996

Before HALL, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Kenneth P. Andresen, Charlotte, North Carolina, for Appellant. William A. Brafford, Assistant United States Attorney, Charlotte, North

Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Anthony George Ross's attorney has filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967), contending that no

non-frivolous issues for appeal exist on the district court record in this

case. As required by Anders, counsel nonetheless noted possible

issues Ross desired him to appeal. The Government declined to file

a brief in response to counsel's brief. Ross was informed of his right

to file a supplemental brief but did not do so. This Court subsequently

ordered briefing from Ross's attorney and the Government regarding

a double jeopardy issue surrounding Ross's convictions under 18

U.S.C.A. § 2113(a), (d) (West Supp. 1995). The parties filed briefs on

that issue, and the case is now ripe for disposition.

Testimony at trial by Ross's co-conspirator, Melvin Ramseur,

revealed that Ross and Ramseur conspired to and robbed two

federally-insured banks on two separate dates. Ross, who already had

been convicted of multiple felonies, carried a handgun on both occasions, and both robberies involved threats to injure bank employees.

In fact, Ross punched a female bank employee during the second robbery, breaking her nose.

A FBI forensics expert also testified at trial that hair samples from

a cap and sweater found near the second crime scene matched hair

samples provided by Ross. Further, testimony from a police officer

and from relatives of Ramseur implicated Ross in the robberies.

Finally, an audio tape made at Ramseur's house and corroborating the

testimony of Ramseur's relatives was introduced into evidence and

was played for the jury. The tape was nearly inaudible, and the jury

was provided with a transcript of the tapes. The jury was informed

that the transcript itself was not evidence and was only for use in

helping the jury to understand the tapes.

Ross was found guilty and convicted of nine counts--two counts

of robbery, 18 U.S.C.A. § 2113(a), two counts of armed bank robbery,* 18 U.S.C.A. § 2113(d), two counts of use of a firearm in rela-

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*The indictment styled these offenses as assaults with a firearm during

the course of bank robberies.

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tion to a violent offense, 18 U.S.C.A. § 924(c)(1) (West Supp. 1995),

two counts of possession of a firearm by a felon, 18 U.S.C.

§ 922(g)(1) (1988), and one count of conspiracy to commit a federal

offense, 18 U.S.C. § 371 (1988). This appeal followed.

With regard to all but the double jeopardy issue on which we

ordered additional briefing, we find that counsel properly found the

appeal frivolous. There is no merit in the double jeopardy allegation

noted by counsel--that convictions under § 2113(d) and § 924(c)(1)

are improper. United States v. Johnson, 32 F.3d 82, 85-86 (4th Cir.

1994). There also is no merit in the claim that the evidence was insufficient to support the § 924(c)(1) conviction because no expert testified to the nature of the handgun as a "firearm." The record clearly

contains evidence that Ross carried a weapon during the robberies

that "[would or was] designed to . . . expel a projectile by the action

of an explosive." 18 U.S.C. § 921(a)(3) (1988). The lay testimony

regarding the handgun was sufficient. United States v. Jones, 907

F.2d 456, 460 (4th Cir. 1990).

The admission of the FBI agent's testimony was not error. The

agent's expert status is not at issue. And the evidence Ross submitted

that he was bald at the time of the robberies was not uncontested, as

Ross submits. Further, Ross's baldness at the time of the robberies

would not be dispositive of this issue because the hairs found in the

cap and sweater could have been Ross's nonetheless--they could

have been deposited in the clothing at an earlier point in time. The

district court did not abuse its discretion in admitting the testimony.

United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993) (standard

of review). Further, any error regarding the testimony would have

been harmless in light of Ramseur's testimony. Fed. R. Crim. P.

52(a). Neither did the district court err in admitting the tape of conversations at the Ramseur household. It was merely cumulative of testimony already presented at trial, and it also was harmless.

Ross also had counsel raise frivolous issues regarding the sentence

--that the sentence is disproportionate to that of Ramsuer and that the

sentence is cruel and unusual. The trial court did not err in failing to

consider disparity between Ross's and Ramseur's sentences, even if

such a consideration were appropriate. United States v. Ellis, 975 F.2d

1061, 1066 (4th Cir. 1992). Ross was a career offender; Ramseur was

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not. Ross was the lead actor and instigator of the crimes and held

most of the cash for himself; Ramseur was cajoled into acting with

Ross and received little monetary gain. During the robberies Ross carried a gun; Ramseur carried a steak knife. Finally, after pleading

guilty, Ramseur assisted the Government; Ross has not. Also, Ross's

sentence, which is less than death or life without parole, is not reviewable under the Eighth Amendment. Solem v. Helm , 463 U.S. 277, 290

(1983). We affirm the district court judgment with respect to all these

claims.

We find, however, that Ross's counsel failed to raise the possible

existence of an issue that was not frivolous regarding the convictions

under both § 2113(a) and § 2113(d) for both robberies. Section

2113(a) is a lesser-included offense of § 2113(d). United States v.

Whitley, 759 F.2d 327, 331 (4th Cir.) (en banc) (citing Prince v.

United States, 352 U.S. 322 (1957)), cert. denied, 474 U.S. 873

(1985). Thus, the district court should not have entered convictions on

both the § 2113(a) and (d) guilty verdicts, but should have entered

only the § 2113(d) convictions. Id. at 330-31. We vacate that portion

of the judgment convicting Ross of § 2113(a) crimes.

Thus, although we affirm the remainder of the judgment, we vacate

the judgment with regard to the § 2113(a) convictions and remand the

case for the district court to strike the § 2113(a) convictions. We deny

Appellant's motions for provision of a transcript at government

expense and for appointment of new counsel. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If the client

requests that a petition be filed, but counsel believes that such a petition would be frivolous then counsel may move in this court for leave

to withdraw from representation. Counsel's motion must state that a

copy thereof was served on the client. 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.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

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