United States v. Zachary Anderson Wailes, No. 21-3336 (8th Cir. 2022)
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Defendant pleaded guilty to bank robbery. The presentence investigation report (PSR) recommended applying a five-level sentencing enhancement for possessing or brandishing a firearm during the robbery. Overruling Defendant’s objection, the district court 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. Section 3553(a) sentencing factors imposed a 100-month sentence. Defendant appealed, arguing the district court committed clear error when it imposed the five-level firearm enhancement because the government, by relying on “uncorroborated, unreliable hearsay statements,” failed to prove that Defendant possessed a firearm during the bank robbery.
The Eighth Circuit affirmed. The court concluded that 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. Nor did the court clearly err in finding by a preponderance of the evidence that Defendant brandished or possessed a firearm during the robbery. The tellers’ testimony was strong but not necessarily conclusive evidence on this issue, and the security video did not eliminate uncertainty as to the presence of a firearm.
Court Description: [Loken, Author, with Arnold and Kobes, Circuit Judges] Criminal case - Sentencing. Based on this sentencing record, the district court did not err in imposing an enhancement under Guidelines Sec. 2B3.1(b)(2)(C) for possession of a firearm during the course of the bank robbery.
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