United States of America, Plaintiff-appellee, v. David Hugh Storer, Defendant-appellant, 956 F.2d 1169 (9th Cir. 1992)

MEMORANDUM^** 

David Hugh Storer appeals his conviction and sentence following a conditional guilty plea to bank robbery, in violation of 18 U.S.C. § 2113(a). Storer contends that the district court erred by denying his motion to suppress identification testimony because the pretrial identification was unreliable and overly suggestive. Storer also contends that the district court misconstrued the maximum sentence for bank robbery. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

* Suppression of Identification Testimony

We review de novo whether a pretrial identification procedure is impermissibly suggestive. United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987). Due process is violated if the procedure is so suggestive as to "give rise to a very substantial likelihood of irreparable misidentification." Denham v. Deeds, No. 90-15798, slip op. at 915, 923 (9th Cir. Jan. 27, 1992).

Here, employees from the victim bank described the bank robber as a white male with brown hair and facial hair. The bank teller identified Storer as the bank robber after examining a photo array of six suspects.¹ 

Storer argues that the photo array was unnecessarily suggestive because only two of the pictures in the array depicted individuals with brown hair and that Storer's picture was larger than the other five. Nevertheless, as noted by the district court, all six photos depict white males of approximately the same age with different shades of brown hair and facial hair. Although one photo is slightly larger than the others, the difference is not so significant as to give rise to a very substantial likelihood of irreparable misidentification. See Johnson, 820 F.2d at 1073. We conclude that the photographic identification procedure was proper, and that the identification testimony was admissible. See id.

II

Statutory Maximum Sentence for Bank Robbery

18 U.S.C. § 2113(a) describes the offense of bank robbery. The provision concludes by stating that any person committing such an offense shall be fined, or "imprisoned not more than twenty years, or both." 18 U.S.C. § 2113(a). Storer argues that under the Comprehensive Crime Control Act of 1983, 18 U.S.C. § 3551 et seq., the maximum sentence for bank robbery is 12 years.² 

18 U.S.C. § 3559 classifies criminal offenses by letter grade according to the maximum term of imprisonment authorized. See 18 U.S.C. § 3559(a). Without regard to its letter grade, the maximum term of imprisonment of an offense "is the term authorized by the law describing the offense." 18 U.S.C. § 3559(b) (emphasis added); see United States v. Schiffbauer, No. 90-10624, slip op. at 1081, 1085 (9th Cir. Feb. 4, 1992). Section 2113(a), which describes the offense of bank robbery, clearly states that the maximum term of imprisonment for the offense is 20 years. 18 U.S.C. § 2113(a). Therefore, although section 2113(a) does not classify bank robbery by letter grade and by definition is a Class C felony under section 3559(a) (3), the sentencing provisions under 18 U.S.C. § 3581(b) are inapplicable. See Schiffbauer, slip op. at 1086.

AFFIRMED.