UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4690

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

LARRY DONNELL FRYE, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Henry E. Hudson, District 

Judge. (3:07-cr-00247-HEH-1) 

Submitted: February 26, 2009 Decided: April 27, 2009 

Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Christopher J. Collins, Richmond, Virginia, for Appellant. Dana 

J. Boente, Acting United States Attorney, Elizabeth C. Wu, 

Assistant United States Attorney, Richmond, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 A jury convicted Larry Donnell Frye of one count of 

armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) 

(2006). The district court sentenced him to 250 months’ 

imprisonment, a seventy-five-month upward variance from the top 

of the range suggested by the Sentencing Guidelines. Frye 

appeals, challenging the sufficiency of the evidence and the 

substantive reasonableness of his sentence. Finding no merit to 

these challenges, we affirm. 

 We review the district court’s decision to deny a Fed. 

R. Crim. P. 29 motion for judgment of acquittal de novo. United 

States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). Where, 

as here, the motion was based on a claim of insufficient 

evidence, “[t]he verdict of a jury must be sustained if there is 

substantial evidence, taking the view most favorable to the 

Government, to support it.” Glasser v. United States, 315 U.S. 

60, 80 (1942). Substantial evidence is evidence which “a 

reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 

(4th Cir. 1996) (en banc). In evaluating the sufficiency of the 

evidence, this court does not review the credibility of the 

witnesses and assumes that the jury resolved all contradictions 

in the testimony in favor of the Government. United States v. 

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Sun, 278 F.3d 302, 313 (4th Cir. 2002). In addition, the court 

considers circumstantial and direct evidence, and allows the 

Government the benefit of all reasonable inferences from the 

facts proven to those sought to be established. United States 

v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The testimony 

of a single witness may be sufficient to support a conviction, 

even if that witness is an accomplice, co-defendant, or an 

informer. United States v. Wilson, 115 F.3d 1185, 1189-90 (4th 

Cir. 1997). 

 On February 21, 2006, a masked man robbed a Wachovia 

Bank branch on West Cary Street in Richmond, Virginia. The 

robber jumped over the bank’s teller counter, demanded and 

grabbed money from the teller drawers, and pointed a gun at and 

threatened to kill bank employees. A witness walking that day 

on a sidewalk near the bank heard a “pop” and observed a man 

standing in a nearby parking lot enveloped in a cloud of red 

smoke and throwing money from his shirt onto the ground. The 

man then fled between two nearby apartment buildings. Law 

enforcement officials investigating the robbery recovered from 

the ground near the bank clothing as well as United States 

currency, some of which stained with red dye. DNA analysis 

revealed that Frye could not be eliminated as a contributor to 

the DNA found on the recovered clothes. 

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 The Government also presented the testimony of Lamont 

McCord, a convicted felon, who testified that Frye admitted to 

robbing the Wachovia bank and described to McCord jumping over 

the teller counter, grabbing money and placing it in his pants, 

and that upon leaving the bank, a dye packet exploded and he 

changed his clothes in a alleyway. McCord also testified that 

Frye bragged that he would “beat” the charge against him because 

the bank tellers could not identify him and because one of his 

pieces of clothing contained more than one set of DNA. Frye 

denied ever robbing the bank. 

 On appeal, Frye contends that the evidence is 

insufficient to support his conviction because the Government 

failed to introduce evidence of the Wachovia bank’s status as an 

institution insured by the Federal Deposit Insurance Corporation 

(“FDIC”). He also asserts that McCord’s testimony, the only 

direct evidence linking him to the robbery, is incredible. 

 To sustain a conviction for armed bank robbery under 

18 U.S.C. § 2113(a), (d), the Government was required to prove 

that the institution from which the money was stolen was a 

“bank” as that term is defined in 18 U.S.C. § 2113(f).* See

 

(Continued) 

*

 18 U.S.C. § 2113(f) provides: 

As used in this section the term “bank” means any 

member bank of the Federal Reserve System, and any 

bank, banking association, trust company, savings 

4 
United States v. Gallop, 838 F.2d 105, 111 (4th Cir. 1988); 

United States v. Wingard, 522 F.2d 796, 797 (4th Cir. 1975). At 

trial, the parties entered into the following stipulation, which 

was signed by counsel for Frye and counsel for the Government, 

read to the jury, and received into evidence without objection: 

Comes now the United States of America by its counsel, 

and [Frye] by his counsel, respectfully state and 

hereby stipulate the following facts are true and 

correct: 

Stipulation Number 1. On or about February 21, 2006, 

the Wachovia Bank at 3201 West Cary Street, Richmond, 

Virginia, was a bank, as that term is defined in Title 

18 of the United States Code, Section 2113(f), and 

that the deposits therein were insured by the Federal 

Deposit Insurance Corporation, or FDIC. 

Parties further stipulate that at least $3,907.38 in 

U.S. currency was taken from a person in the presence 

of another, on this date, and at this location. 

The express language of the stipulation shows Frye’s agreement 

that the Wachovia bank was a “bank” as that term is defined in 

18 U.S.C. § 2113(f). Frye makes no attempt to invalidate the 

stipulation by showing, for instance, that he entered into it 

inadvertently or that he was not competent to make it. See

 

bank, or other banking institution organized or 

operating under the laws of the United States, 

including a branch or agency of a foreign bank (as 

such terms are defined in paragraphs (1) and (3) of 

section 1(b) of the International Banking Act of 

1978), and any institution the deposits of which are 

insured by the Federal Deposit Insurance Corporation. 

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United States v. Reedy, 990 F.2d 167, 169 (4th Cir. 1993). By 

failing to dispute the stipulation’s validity, he has abandoned 

any basis for challenging the stipulation’s evidentiary value as 

to its stipulated elements. See id. 

 Frye’s challenge to the sufficiency of the evidence 

on the basis of the credibility of witness McCord also fails 

because witness credibility is not subject to appellate review. 

See Sun, 278 F.3d at 313. As evidenced by its finding of guilt, 

the jury resolved any conflicts in testimony in favor of the 

Government and determined the Government’s witnesses to be 

sufficiently credible and otherwise found sufficient 

circumstantial and direct evidence of guilt. Our review of the 

record convinces us that the jury heard sufficient evidence to 

find Frye guilty as charged. 

 Frye also challenges the substantive reasonableness of 

his sentence. After United States v. Booker, 543 U.S. 220 

(2005), a sentence is reviewed for reasonableness, utilizing an 

abuse of discretion standard of review. Gall v. United States, 

128 S. Ct. 586, 597 (2007). The first step in this review 

requires this court to ensure that the district court committed 

no significant procedural error, such as improperly calculating 

the Guidelines range. United States v. Evans, 526 F.3d 155, 161 

(4th Cir. 2008). Frye claims no procedural error. 

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 This court next considers the substantive 

reasonableness of the sentence imposed, taking the totality of 

the circumstances into account. Id. at 161-62. Although this 

court may presume that a sentence within the Guidelines range is 

reasonable, it may not presume a sentence outside of the 

Guidelines range is unreasonable. Gall, 128 S. Ct. at 597. In 

reviewing a sentence outside of the Guidelines range, we must 

consider “whether the sentencing court acted reasonably both 

with respect to its decision to impose such a sentence and with 

respect to the extent of the divergence from the sentencing 

range.” United States v. Hernandez-Villanueva, 473 F.3d 118, 

123 (4th Cir. 2007) (citation omitted). 

 This court will find a sentence to be unreasonable if 

the sentencing court “provides an inadequate statement of 

reasons or relies on improper factors in imposing a sentence 

outside a properly calculated sentencing range.” Id. The 

court, however, must give due deference to the district court’s 

decision that the 18 U.S.C. § 3553(a) (2006) factors justify the 

sentence. See Gall, 128 S. Ct. at 597; Evans, 526 F.3d at 162. 

Even if this court would have imposed a different sentence, this 

fact alone will not justify vacatur of the district court’s 

sentence. Evans, 526 F.3d at 162. 

 Our review of the record convinces us that the 

district court’s 250-month variance sentence was substantively 

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reasonable. The district court considered the parties’ 

arguments and engaged in a meaningful articulation of its 

consideration of the 18 U.S.C. § 3553(a) factors supporting the 

seventy-five-month upward variance. Notably, the court 

thoroughly reviewed Frye’s extensive criminal history and 

accurately highlighted Frye’s history of assaultive and 

threatening behavior. 

 Accordingly, we affirm the district court’s judgment. 

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