NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0633n.06
No. 11-6355
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA,

Plaintiff-Appellee ,

v.
RI CKY VERNON B RYANT,

Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TEN NESSEE

Before: M OORE an d GRIF F IN, Circ uit Jud ges; and SARGUS, Distr ict Judge. *

SARGU S, District Judge. Ricky Ver non Br y ant (“Appellant”) appea ls his conviction on
char g es of bank robber

y , 18 U.S.C. § 2113(a) and (d), and brandis h i n g a fi rea rm during and in
rela tion to a crime of violence , 1 8 U. S

. C

. § 924(c)

. He contends that the district court err ed in deny ing his motion for acquittal based upon the insufficienc y of the evidenc e. He also asser ts tha t
the district court err ed in imposing a sentenc e above the gu ideline rang e set forth in the Fe dera l Sentencing Guidelines. Finding no merit to either assig nment of err or, we aff irm the conviction and
the sentenc e.
I. Following indictment by the grand jury , the appellant was convicted afte r trial by jury

. Testimony reve aled that on September 27, 2 0 1 0 , a whi te male enter ed the Cosby Br anch of the

The Honor able Edmund A. Sar g us, J r., United States District Judge f or the Southern * District of Ohio, sitting by desig nation.11-6355

United States of America v . Bryant

National Ba

nk of Tenne ssee, pointed a rifle at the tellers, and demande d all the money in the bank.
The bra nch mana g er, thre e other

employ ees, a

nd a customer

wer e pre sent during the robbe ry
. The bank robber repe atedly told the tellers that he would kill them unless they g ave him all
of the money in the bank. The ri fl e u s ed i n the robber y was initially wra

pped and conce aled in a
g ree n towel, which the robber dropped and left in the bank. The robber also flung a blue bag at the
tellers and told them to place the cash into the bag

. The bag was filled with more than $260,000 in cash, most of which has not been rec overe d. Ang ela Mathis, branc h manag er, observe d the robber
leave the bank a

nd drive a way in a J eep w ith red or or ang e tape on it.
A hunter later found a blue bag full of dy e-staine d money in a wooded are a in the vicinity of

Br y ant’s house. Captain Der rick Woods testified that he located a J eep wi t h o ra n ge tape on the
exterior near the appellant’ s residenc e. I n the same location, he found a rifle simil ar to the one used
in the robber

y
. The towel dropped at the bank was found to contain DNA, which was compar ed to a sample
taken from the appellant. Br adley Evere tte, a serolog y fore nsic scientist with the Tenne ssee Bur eau
of I nvestig ation, testified that it was scientifica lly unrea sonable that the DNA taken from the towel
was not that of the a

ppellant.
S h erle ne Cony ers, who pleade d g uilty to being an acc essory afte r the fac t in the same
robber y , testified that Br

y ant had asked her to visit the branc h bank prior to the robber y and to draw
the lay out of the fac ility

. She also g ave him information as to the secur ity g uard and the location of
the tellers. Three day s afte r the bank robber y , Br y ant asked her to pick him up and take him to his11-6355

United States of America v . Bryant

residenc e wher e he cou ld pick up money
. For her service s, he paid her with eig hteen pills of 80
milli g ram oxy codone a

nd $200 in cash.

Br y ant’s son testified that the appellant had a s ev er e ad d iction to ox y codone. He also

rec og nized the towel found at the scene and the jacke t worn by the robber as belong ing to his fathe r.
Br y ant’s stepfathe r t es t i fi ed t h at the rifle used in the bank robber y was simil ar to the one he had
loaned the a

ppellant.
After the jury convicted B ry ant, the prese ntence repor t c alculate d the g uideline ra ng e as to
Count One, bank robber

y , to be 51 to 63 m onths. As to Count Two, bra ndishing a firea

rm during

a crime of violence, the conviction car ried a mandatory , consec utive minimum sentenc e of 84
months (seve n y ear s), for a combined sentenc in g gu i deline rang e of 135 to 147 months. No objections wer e lodge d to a ny finding made in the prese ntence repor t. The Gover

nment reque sted

an upwar d varia

nce to a combined sentenc e of 204 months based upon t h e injury suffe red by the bank employ ees a

nd customer.
The district court corr ectly calc ulated the sentenc ing g uideline rang e and g rante d an upwar d
varia nce to a combined sente nce of

184 months.

II.
As to Br y ant’s cla im that the evidence was insufficient to support a conviction, our task is
to de termine “af

ter viewing the evidenc e in the light most favor able to the pr osecution, [whether]

any rational trier

of fa ct could have found the e ssential elements of the crime be y ond a re asonable
doubt.” United States v. LaP o i n t e , 6 9 0 F.3d 434, 443 (6th Cir. 2012) ( citing United States v. Penny men , 889 F.2d 104, 106 ( 6th Cir. 1989)).11-6355

United States of America v . Bryant

This Court revie ws the sentenc e imposed by the di s t ri ct court for both proce dural and
substantive rea sonablene ss. Whil e the appellant char acte rizes the above g uideline sentenc e as an 1

upwar d depar

ture as authorized in some circ umstances under the Sentencing Guidelines, the rec ord
below clea

rly indicates that the district court looked to 18 U.S.C. § 3553(a) and d et ermined a 2

T he a ppe ll ant doe s no t c hal le nge the pr oce dur al re aso nab le nes s of th e s ent enc ing pr oce ss. 1 §355 3. I m

pos it ion of

a s ent enc e 2 (a ) Fac tor s T o Be Cons ide re d in I m pos ing a Sent enc e.— T he cou rt sha ll impose a sen te nce suf fi ci ent , but not great er tha n nec ess ar y, to comply wit h the pur pos es set for th in par agraph (2) of thi s sub sec ti on. T he
cou rt , in det er m ini ng the par ti cul ar se nte nce to be imposed , sh al l c ons ide r— (1) the nat ure and ci rc um st a n c e s o f t h e off ens e and the his tor y and cha ra ct er is ti cs of the def end ant ; (2) th e ne ed f

or the se nte nce imposed

— (A) to re fl ect the ser iou sne ss of the off ens e, to promote res pec t for the la w, and to pro vide j ust pun is hm ent fo r t he o ff ens e; (B) to af for d ad equ at e de te rr enc e t o cr iminal con duc t; (C) to pr ote ct th e pu bli c f rom fur the r c ri m es of the def end ant ; a nd (D) to pro vide the def

end ant wit h nee ded edu cat ion al or vocati ona l tr ai nin g, m edi cal car e, or oth er cor re ct ion al tr eat m ent in th e most e ff ect ive m ann er ; (3) th e kinds of

se nte nce s a vaila ble ; (4) th e kinds of

se nte nce and th e s ent enc ing ra nge est abl is hed fo r— (A) th e a ppl ic abl e cat egory o f off ens e comm it te d by the app li cab le ca te gory of de fe nda nt as set fo rt h i n t he guid el ine s— (i ) i ssu ed b y the Sent enc ing C om m is si on purs uan t to sect ion 994( a) (1) of ti tl e 28 , Unit ed Stat es Code, sub

j ect to any amendm ent s m ade to suc h g uid el ine s by act of Congres s (re gardl ess of

whet her suc h am end m ent s have yet to be inc orp ora te d by the Sent enc ing Comm is si on i nto amendm ent s is sue d unde r sec ti on 994( p) of ti tl e 28) ; a nd (i i) tha t, exc ept a s pro vided in sec ti on 3742 (g), ar e in ef fe ct on the dat e the def end ant is se nte nce d; or (B) in the cas e of

a viol at ion of pro bat ion or sup er vised re le ase , the app li cab le guidel ine s or pol ic y st at ements is sue d by the Sent enc ing Com m is si on pur sua nt to sec ti on 994( a) (3) of ti tl e 28, Unit ed Sta te s Code , ta king int o acc ount any amendm ent s m ade to suc h g uid el ine s or pol ic y stat ements by act of Congres s (re gardl ess of whet her suc h am end m ent s have yet to b e inc orp ora te d by the Sent enc ing Com m is si on int o amendm ent s is sue d unde r sec ti on 994( p) of ti tl e 28 ); (5) any per ti nen t p oli cy sta te m ent

— (A) is sue d by the Sent enc ing C om m is si on pur sua nt to sec ti on 994( a) (2) of ti tl e 28, Unit ed Sta te s Code , sub

j ect to any amendm ent s m ade to suc h pol ic y st at ement by act of Congres s (r egardl ess of whet her suc h amendm ent s h a ve yet to be inc orp ora te d by the Sent enc ing11-6355

United States of America v . Bryant

varia nce, rathe r than upwar d depar ture, from the sentenc ing g uidelines was war rante d. We have distinguished depa

rtures f rom varia nces, de eming depar

tures as deviations based upon sente ncing

g uideline provisions a

nd varia nces a s based upon § 3553( a) f actor s. See Irizarry v. United States, 553 U.S. 708, 714 (2008); United States v. Grams , 566 F.3d 683, 686–687 ( 6th Cir. 2009).
“A sentenc e is substantively unrea sonable if the sentenc ing court arbitra rily select ed t h e

sentenc e, based the sentenc e on impermissible fac tors, failed to consider pertinent 3553(a) fac tors,

or g ave an unrea sonable a mount of weig ht to any

pertinent fa ctor.” United States v. Mitchell , 681
F.3d 867, 881 (6th Cir. 2012) ( citing United States v. Cunningham , 669 F.3d 723, 728 (6th Cir. 2012)). This Court considers “the leng th of the sentenc e and the fac tors evalua ted

. . . by the district

court in rea ching its sentenc ing deter mination.” United States v. Herrera- Zuniga , 571 F.3d 568, 581 (6th Cir. 2009).
Whil e a sen tence within the sentenc ing g uideline rang e is assumed by this Court to be presumptively rea sonable, a sentenc e which varie s from the g uideline rang e is not subject to a presumption of unrea sonablene ss. Ga l l v. United States , 552 U.S. 38, 47 (2007). This Court

co n siders the extent of the varia nce imposed, but defe rentially revie ws the district co u rt ’s
consideration of sentencing fac tors under 18 U .S.C. § 3553(a). Id.

Com m is si on i nto amendm ent s i ssu ed u nde r s ect ion 994 (p) of ti tl e 28 ); and (B) tha t, exc ept as pro vide d i n s e c t i o n 3 742( g), is in ef fe ct on the dat e the def

end ant is
sen te nce d. ( Foot not e omitt ed.) (6) the nee d to avoid unwar ra nte d sen te nce dis par it ie s among def end ant s wit h si m il ar re cor ds who have be en f

ound guilt y of si m il ar con duc t; and (7) th e ne ed t o pr ovide r est it uti on t o an y v ic ti m s of th e of fe nse
.11-6355

United States of America v . Bryant

III.

Br y ant contends that no rea sonable jury could have found him g uilty bey o nd a rea sonable
doubt. Br

y ant recites a long list of what h e considers deficienc ies in the Government’s case. For example, the branc h manag er could not at first identify him, even though she had known Br y ant his
entire life. He questions whether the Gover nment had p ro ven the means by which his DNA was
located upon the cloth dropped in the bank. He notes that the descr iption of the jacke t worn by the
robb er i s t h e ty

pe owned by most residents of Cocke County , Tenne ssee. Br y ant notes that the

money found in his jacke t c ontained no dy e from an explodi ng device place d with the money . No

money was found on his 50 ac re p ro p er t y , and no dy e stained materia ls wer e found in his truck.

Br y ant alleg e s th a

t She rlene Cony ers was seriously addicted to Oxy codone when she testified ag ainst him. Finally , his stepfather said he was unsure whether the g un used i n the robbery was the same
one he ha d loaned B ry ant.
These alleg ed defic iencies do not demonstrate a lack of proof as to eac h element of the
char g ed offe nses. I t is not for this court to “re weig h the evidenc e, ree valuate the cre dibilit y of
witnesses or substitut e [i ts] judgme nt for that of the jury .” United States v. Martinez , 430 F.3d 317, 330 (6th Cir. 2005), citing United States v. Hilliard , 11 F.3d 618, 620 ( 6th Cir. 1993).
The Gover

nment prese nted a plethora of evidenc e from which a jury could find the appellant

g uilty of eac h and ever

y element of the char g ed offe nses. Five witnesses descr ibed the robber , the

g un and the threa ts. The appellant’ s DNA was found on the g ree n towel dropped by the robber during the incident. Sherlene Cony ers testified that Br y ant paid her to case the bank prior to the
robber y
. The vehicle found on Br y ant’s proper

ty matched the descr iption of the vehicle used by the11-6355

United States of America v . Bryant

robber following the bank robber y
. The rifle used i n the robbery was sim ilar t o th e o ne loaned to
Br y ant by his stepfather

. We conclude that the evidenc e prese nted was of such char acte r that a rea sonable jury could
have f ound the appe llant guilty

bey ond a re asonable doubt.

IV.

Br y ant contends that the district court relied upon matters adequately taken into acc ount by
the sentenc ing g uidelines to justify an improper upwar d varia nce. Specifica lly , he contends that (1)
the sentenc ing g uidelines alre ady assumed a potential for harm to victi m s ; (2) the alleg ed

psy cholog ical inj uries to the bank e mploy ees a nd customer we re inc orpora ted into the Sentencing
Guidelines and any further consideration should have re quired medic al proof, which was lacking ;
and (3) 18 U.S.C. § 924(c) contained an enhanc ed mandatory sentenc e fo r b randishing a firea rm,
which should not have be en fur ther e nhance d without a discharg e of the g un.
The district court did an exemplary job of explaining its re as o n s fo r imposing an above

g uideline sentenc e. As to the potential for harm, the district c ourt explained:

Mr. Br y ant, I have been on this be nch g oing on 9 y ear s now. I prac ticed law for 23 y ear s befor e that. Ove r the c ourse of those y ear s, I

have e ither handle d as a la wy er or presided over as a judge m an y b an k ro bbery case s. I ’ve g ot to tell y ou that the circ umstances of this case lead me to conclude that this particula r bank robber

y car ried out in the community wher e it was car ried out, carri ed out in the close confine s wher e it was ca rr ied out, and car ried out in the manner in which it was acc omplished poses in my view the g rea test potential for injury or death of any bank robber y case I ’ve e ver se en.
Fr ankly , I am amazed that somebody was not ser iously

injured or kill ed on the day of this robbe ry
. You enter ed the National Ba nk of Tenne ssee in Cosby with a rifle, threa tened to kill people with the means to kill them if they didn’t do what y ou told11-6355

United States of America v . Bryant

t h em t o do. You di d it in a very ag g ressive and threa tening manner
. You actuall y committed a phy sical assa ult while in the bank itself. (Dist. Ct. S entenc ing T r. at 24, Dist. Ct. Docket No. 90.)
The district cour

t also considere d the sig nificant psy cholog ical har m cause d by

the appellant. The district court noted:

You went into that bank at a time when there wer e three bank employ ees prese nt in the bank. Mr. Reeve s has rec ited the testimony of some of those, and I ’ve hear d the allocution of Ms. Mathis h er e t h i s morning

. Ms. Mathis understate s, fra nkly , the impact that an event such as this ha s on a bank teller in those circ umstances. There is no doubt that she i s corr ect that this incident has impac ted the lives of every one of them, as well as the customer who was in that bank that day , and I would dare say others in the community

as we ll.

I v i v i d ly reme mber the testimony of Ms. Seay that all that she could think ab o u t while t his robber

y was occurr ing was, wha t’s g oing to ha ppen to my

children. I ’m about to be killed, who is g oing to take car e of my children.

I dare say that neither Ms. Mathis, Ms. Seay nor Ms. Webb will ever forg et the events of September 27; a

nd while none of them wer e shot or seriously injured phy sically , they will never

theless s uffe r t he results of t heir emotional inju ri es in all likelihood for the r est of their life , Mr. B ry ant.
I am very well awa

re, without Mr. Reeve s even rec iting today , what bank tellers ty pically say about the impact of these robber ies, even robber ies wher e a g un is not display ed or brandished, on their emotional health. I t’s not at all unusual for a bank teller under t h es e ci rc umstances to have to seek profe ssional help. I t’s not at all unusual for these kinds of events beca use of the emotional trauma that’s suffe red for
a bank teller to have difficulty with other rela tionships, family or work rela tionships. I t’s not at all unusual for bank tellers not to return to that kind of empl o y ment beca use they find out they simply cannot stand the stress, and they wonder ever y time the door ope ns whether

there ’s another

robber coming throug h the door.

I v ery well reme mber what happene d to Ms. Whit ten on the day of that ro b b er y wher e she manag ed to maintain herself on her f eet until y ou left that bank and then she collapsed. I don’t doubt that she had bad drea ms. I don’t d o u b t t h at she fee ls anxiety when s o m eb ody comes up behind her. I don’t doubt that she feels anxiety when she is standing in a line and somebody comes in the door behind her or g ets in11-6355

United States of America v . Bryant

the line behind her, and I don’t doubt tha t she ’ll have those kinds of injuries for the rest of he r life.
Id. at 25–26. Finally , the district court a ddresse d the method in which B ry ant used the g un:
You know, whether y ou put a g un in the fac e of somebody that d ay o r n ot is irrele vant. You were withi n a few feet of all of t hese ladies who were in that bank that day , brandishing a larg e firea rm, threa tening to kill them. Wheth er i t was literally in the ir fac e or not, I have no doubt tha t it felt like that firea rm was rig ht in their fac e, and I have no doubt that they had no doubt of y our willingness to use that firea rm.
Id. at 27.
The district cour

t then explained its conclusion:

Now , what I have to do with all those fac tors, Mr. Br y ant, is to weig h them and balanc e them and come to a co n clusion about what sentenc e is sufficie nt but not g rea ter than nece ssary in this case
. And C ong ress meant what i t said, the m andate is to im pose a se ntence sufficie nt but not one day g rea ter than ne cessa

ry to comply with the purposes of se ntencing established by the Cong ress.
This is, as I ’ve said to y ou, one of those rar e case s where I have come to the conclusion that the g uideline ra ng e does not adequate ly take into ac count all of the 3553(a) fac tors. I t is one of those rar e case s wher e I have some policy disag ree ment with the g uideline, primarily beca use it does not ref

lect truly the s eriousness of the offe nse. I t does not in this particula r case fully ref

lect the nature and circ umstances of the crime that was committed. I t does not fully take into acc ount the degr ee of harm suffe red by others. I t does not fully take into acc ount, in my view, the need to deter this kind of activity , and it does not ade quately protec t the public.
So I find based on my balanc ing of all those fac tors that the Gover nment’s arg ument here for an above g uideline sentenc e is well taken; and as I said ear lier, the Gover nment sug g ests basica lly

a doubling of the g uideline ra ng e, fr om a top of the rang e sente nce of

63 months on the bank robber y to a sentenc e of 120 months.

I t ’s h ard, Mr. Br

y ant, to come to a prec ise conclusion about what sentence i s sufficie nt but not g rea ter than nece ssary
. I wish it wer e as simple as the statute somewhat makes it appea r; and that is that y ou s i m ply g o down t his list of factors,11-6355

United States of America v . Bryant

y ou assig n a weig ht to them, y ou add up the total and that g ives y ou an answe r. And to some extent that’s the way it used to be when the g uidelines wer e mandatory , just add up ce rtain numbers a

nd y ou g et an a

nswer; but it’s not that simple.
Whil e I think some varia nce from the g uideline rang e upwar d is appropr iate here based on the fac tors I have identified, I also find that the signific ant upwar d varia nce sug g ested by the Gover

nment, that is basica lly a 100 perc ent upwar d varia nce, is not justified under the fac ts and circ umstances of the case
. What I am g oing t o do, howeve r, Mr. Br

y ant, is impose a sentenc e on this bank robber y count which is signific antly

above the g uideline ra

ng e.
Id. at 38–40.
The sentenc e imposed was not substantively unrea sonabl e. The district court proper ly computed the sentenc ing g uidelines, considere d all the § 3553(a) fac tors, and did not rely on impermissible sentenc ing fa ctors. The district judge cog ently and thoroug hly explained his

rea soning in concluding that the sentenc ing g uidelines did not adequately captur e the g ravity of the
offe nses committed by

the appe llant.

V.
Ba sed upon the fore g oing, the judgme nt of conviction and th e s e n te n c e impose d are aff irmed.