United States Court of Appeals

For the Eighth Circuit

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No. 21-3336

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Zachary Michael Anderson Wailes

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Central

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 Submitted: April 11, 2022

Filed: August 12, 2022

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Before LOKEN, ARNOLD, and KOBES, Circuit Judges. 

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LOKEN, Circuit Judge.

Zachary Wailes pleaded guilty to bank robbery. 18 U.S.C. § 2113(a). The

presentence investigation report (PSR) recommended applying a five-level sentencing

enhancement for possessing or brandishing a firearm during the robbery. USSG
§ 2B3.1(b)(2)(C). Overruling Wailes’s objection, the district court1

 found the

Government proved there was a firearm involved by a preponderance of the evidence. 

The five-level firearm enhancement resulted in an advisory guidelines sentencing

range of 100 to 125 months’ imprisonment. The court after considering the 18 U.S.C.

§ 3553(a) sentencing factors imposed a 100-month sentence. Wailes appeals, arguing

the district court committed clear error when it imposed the five-level firearm

enhancement. We affirm.

I. Background

On the morning of February 25, 2021, Wailes entered the Peoples Bank in

Scranton, Iowa wearing a dark hooded sweatshirt, dark sunglasses, and a mask. He

approached the three bank tellers -- C.W., P.H., and J.E. -- and ordered each to put the

money from her teller drawer into his bag. Wailes left the bank with $19,157. He

was arrested two days later and ultimately pleaded guilty to bank robbery.

Six weeks after the robbery, the three tellers were interviewed by local law

enforcement. C.W. told police she observed the handle of a small, black handgun in

Wailes’s right pocket and that he briefly grabbed the gun when commanding her to

put the money in the bag. Neither of the other two tellers saw a gun, but P.H. stated

that Wailes kept his hand in his right pocket, and J.E. said there was something

weighing down Wailes’s right pocket. Paragraphs 8 and 9 of the PSR recounted these

facts. Wailes objected to C.W.’s assertion in Paragraph 8, noting “[t]he surveillance

video of the incident does not appear to support this assertion” and C.W.’s interview

“occurred a significant time after the robbery.” Wailes objected to J.E.’s assertion in

Paragraph 9 “that Mr. Wailes’ pocket appeared weighted down.” 

1The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

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At sentencing, the tellers did not testify. The government introduced audio

recordings of their law enforcement interviews, as well as a video of the robbery

taken by the bank’s security cameras, still frames from that video, and testimony by

FBI Special Agent Dave Warren, who investigated the robbery. Wailes introduced

Suspect Identification Profile forms completed by the tellers on the day of the robbery

in which they did not report the presence of a weapon. Wailes also elicited testimony

that C.W., the only teller who reported seeing Wailes with a gun, resigned from the

bank the day before the sentencing hearing after admitting she took $2,800 from the

bank between August and September 2021 that she later repaid. Special Agent

Warren testified that the purpose of the Profile forms was to get a physical description

of the suspect “out as quickly as possible to law enforcement officers in the area.”

The Guidelines provide that the base offense level for Robbery is increased by

five levels “if a firearm was brandished or possessed.” USSG § 2B3.1(b)(2)(C). A

firearm is “brandished” if “all or part of the weapon was displayed, or the presence

of the weapon was otherwise made known to another person, in order to intimidate

that person, regardless of whether [it] was directly visible.” USSG § 1B1.1 comment.

n.1(C). Wailes argued to the district court that the government failed to prove this

special offense characteristic applies because the government relied on hearsay

statements made by C.W. to a law enforcement officer almost six weeks after the

robbery occurred; C.W.’s earlier inconsistent Suspect Identification Profile form and

recent resignation are “credibility issues;” the security video does not support C.W.’s

statements; the other tellers did not see Wailes carrying a gun; and tellers are trained

to “assume that someone who is robbing a bank has a firearm.” 

After hearing argument by the government that the evidence was sufficient to

support the five-level enhancement, the district court found that:

the Government has proven that there was a firearm involved. It’s not

beyond a reasonable doubt, but this is preponderance of the evidence.

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The Court has relied on . . . the statements of P.H., [J.E.], and

C.W. . . . [C.W.] made these statements before any allegation that she

was dishonest. . . . Let’s assume for a moment that C.W. is incorrect. I

still have the other two, and I’m going on their statements . . . . 

Additionally, . . . [C.W.’s] written statement [] said that her husband’s

family is familiar with firearms; . . . she was . . . closer to [Wailes] than

the others. 

II. Analysis

On appeal, Wailes argues the district court erred in imposing the five-level

enhancement because the government, by relying on “uncorroborated, unreliable

hearsay statements,” failed to prove that Wailes possessed a firearm during the bank

robbery. “We review the factual bases of a district court’s sentencing enhancements

for clear error, and give due deference to the district court’s application of the

Guidelines to the facts.” United States v. Hoelzer, 183 F.3d 880, 882 (8th Cir. 1999). 

A district court may rely on hearsay evidence in resolving sentencing issues so

long as the evidence has “sufficient indicia of reliability to support its probable

accuracy.” Id., quoting USSG § 6A1.3(a). When the government urges a sentence

enhancement, and its evidence in support includes a crime victim’s hearsay

statements to law enforcement investigators, the district court may consider that

evidence “if sufficiently reliable reasons demonstrate the testimony is probably

accurate,” a determination “committed to the sound discretion of the district court.” 

United States v. Woods, 596 F.3d 445, 448 (8th Cir. 2010) (quotation omitted). Of

course, the ultimate finding that the government proved the enhancement by a

preponderance of the evidence is reviewed for clear error. “A factual finding is

clearly erroneous when we are left with the definite and firm conviction that a mistake

has been committed.” United States v. Dock, 967 F.3d 903, 905 (8th Cir. 2020)

(quotation omitted). 

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The determination of whether hearsay testimony is probably accurate and

therefore sufficiently reliable turns on “factors such as the consistency of the hearsay

testimony, the timing and nature of the declarant’s statements, and the witness’s

impressions of the declarant’s demeanor, as well as other corroborating evidence.” 

United States v. Sheridan, 859 F.3d 579, 583-84 (8th Cir. 2017), and cases cited. 

Here, the district court expressly relied on the recorded interviews of all three bank

tellers. Wailes focuses his argument on appeal almost entirely on C.W.’s statements

that she saw the handle of a gun in Wailes’s pocket and he briefly grabbed the gun

handle when demanding she hand over the money in her drawer. 

Wailes argues that C.W.’s hearsay was insufficiently reliable because she

completed an inconsistent Suspect Identification Profile form after the robbery; C.W.

was the only teller who said she saw a gun; the security camera video did not show

a gun and showed that C.W.’s observations of Wailes were limited; C.W.’s credibility

was weak because she resigned from the bank after embezzling; and the government

did not sufficiently corroborate her statements.

We agree with the district court that C.W.’s statements were not wholly

uncorroborated. The bank security camera footage is consistent with C.W.’s

description of the robbery. Wailes’s right side was largely obscured in the video, but

it shows that C.W., the teller at the station closest to the door, had the best view of

Wailes, was the first teller he approached, and had a direct line of sight to his waist

while she loaded his bag with cash. Nor did C.W.’s statements lack indicia of

reliability. She provided details about the firearm, describing it as a black handgun

with a “smaller grip and handle” and “a little bit of texture.” The reliability of this

description was bolstered by C.W.’s personal experience with guns, including a

permit to carry and knowledge through her husband’s family. Cf. United States v.

Gleason, 25 F.3d 605, 609 (8th Cir.), cert. denied, 513 U.S. 911 (1994). 

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Wailes’s argument also gives insufficient attention to the hearsay statements

of the other two tellers, simply dismissing J.E.’s statement because it “does not

corroborate C.W.” The district court expressly relied on the statements of all three

tellers. The above-quoted Guidelines definition of “brandished” -- which USSG

§ 2B3.1(b)(3)(C) presents as an alternative way to come within its purview --

perfectly describes the way Wailes intimidated these tellers into believing he had a

gun that was not directly visible so they would empty the cash in their drawers into

his bag. Although, as the Guidelines definition makes clear, “the weapon must be

present,” the statements of P.H. and J.E. were more than merely insufficient

corroboration of C.W. And their statements aligned with C.W.’s account of the

robbery, including Wailes’s appearance. 

Wailes’s evidence failed to undermine C.W.’s interview statements. First, 

Wailes asserts that a local police report (not in the record) inconsistently stated that

a bank teller said “she observed a firearm in Wailes’s bag.” But Agent Warren

testified that the report said “bank staff” reported seeing a gun in Wailes’s bag, not

a teller, so the report was not inconsistent with the bank teller interviews. Agent

Warren’s testimony also explained that C.W.’s Suspect Identification Profile form

was not intended to provide a comprehensive description of the robbery, so the

omission of a reference to seeing a gun handle did not necessarily contradict her

subsequent interview statements. Finally, as the district court observed, C.W.’s

interview statements were made months before she improperly took money from the

bank and resigned. 

After careful review of the record, we conclude the district court did not abuse

its discretion in considering the tellers’ interview testimony after concluding that the

“statements, though hearsay, were made under circumstances indicating sufficient

reliability.” United States v. Clark, 932 F.3d 1064, 1067 (8th Cir. 2019). Nor did the

court clearly err in finding by a preponderance of the evidence that Wailes brandished

or possessed a firearm during the robbery. The tellers’ testimony was strong but not

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necessarily conclusive evidence on this issue, and the security video did not eliminate

uncertainty as to the presence of a firearm. “But our job is not to act as a factfinder,”

and therefore “emanations of uncertainty [are] not enough to reverse the [district

court’s] finding under our standard of review.” Dock, 967 F.3d at 904-05. 

The judgment of the district court is affirmed. 

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