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United States v. Watts

United States Court of Appeals, Eleventh Circuit

July 24, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
LAMARLVIN WATTS, a.k.a. Lamarlvin Arkeena Watts, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:15-cr-00188-WTM-GRS-1

          Before MARTIN, JILL PRYOR, and BRANCH, Circuit Judges.

          BRANCH, Circuit Judge

         Lamarlvin Watts appeals his convictions and sentences for armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). His appeal raises three issues: (1) whether the district court erred in denying his motion for judgment of acquittal based on insufficiency of the evidence; (2) whether the district court denied him his constitutional right to testify; and (3) whether the district court correctly applied the sentencing guideline enhancement for obstruction of justice, U.S.S.G. § 3C1.1, [1] based on Watts's attempt to avoid identification by covering up his distinctive tattoos. For the following reasons, we affirm.

         I. BACKGROUND

         On July 14, 2015, an armed robber entered a Wells Fargo Bank branch in Savannah, Georgia, and demanded money from the bank teller while brandishing a .22-caliber handgun. He wore a camouflage bandana to cover his face and a yellow hat. The robber escaped with approximately $2, 400 in cash, and a hat and bandana matching were found nearby. Using security footage and eyewitness accounts, the police were able to complete a description of the suspect as a black male wearing dark pants, black and white athletic shoes, and blue latex gloves. The robber also had tattoo on his neck with the letter "U" visible and another tattoo on his forehead between his eyes in the shape of a small cross.

         Acting on a confidential tip, the police arrested Watts the following day. A search of his residence and vehicle turned up, among other things, several .22-caliber rounds, sneakers that were similar in appearance to the black and white sneakers of the robber, and a blue latex glove. The search also uncovered .38-caliber rounds and a .38 caliber revolver in his vehicle, a bandana of a different color than the one used in the robbery, and $319 in cash which the police were unable to link to the stolen currency.

         The evidence at trial included text messages and a call log from Watts's mobile phone. The texts showed that after media reports came out on the day of the robbery, Watts was actively texting his friends, trying to find someone who could alter tattoos. The next day he contacted a tattoo artist who had done previous tattoos for Watts, seeking to modify the tattoos on his forehead (a small cross) and neck (spelling out "TRU"). The tattoo artist testified at trial that he covered up Watts's neck tattoo with an image of doves and a cloud, and modified the cross on Watts's forehead to be a Japanese symbol.

         The FBI's forensic examiner testified that DNA obtained from the hat discovered near the scene was from "at least three individuals" and that the results of the DNA comparison were inconclusive.

         On the second day of trial, Watts requested permission to proceed pro se. The court ultimately granted his request, but required Watts's attorney to remain in an advisory role. Watts requested a continuance more than once, but the court denied those requests.

         After the government rested its case, the court notified Watts that he had a right to testify on his own behalf and he responded, "I would. I would like to." At that point, he had an off-the-record discussion with his attorney. The court then asked him again if he would like to testify, and he responded, "I do not." The court then stated that since it had denied Watts's request for a continuance and there were no other witnesses to be called for the defense, the defendant's case was closed. Watts again stated "I'm willing to testify, Your Honor. May I have -" at which point the transcript simply notes that another "off-the-record discussion was held between the defendant and his counsel." Watts did not pursue his request to testify after that second conversation with counsel.

         Watts stated that he would make closing arguments on his own behalf. He stated, "But before we come to this rest, Your Honor, may I come to understand that the grounds of my testimony, like can I consult with my lawyer before we rule that out?" Yet another off-the-record discussion immediately ensued between Watts and his advisory counsel. The court then stated that there would be a brief recess before closing arguments, and Watts asked, "You're not going to rule on my-" but was interrupted by the court. After the brief recess, the court stated that it found "that the defendant's decision not to testify was . . . made knowingly and voluntarily and also his decision to proceed pro se was made knowingly and voluntarily."

         The jury convicted Watts on both counts. He then renewed his motion for judgment of acquittal and moved for a new trial. The court denied his motions, finding that Watts provided no support for his allegations that the government failed to prove him guilty beyond a reasonable doubt.

         At sentencing, the presentence report applied a two-level enhancement to the offense level under U.S. Sentencing Guidelines Manual § 3C1.1 because Watts "willfully" obstructed or impeded the administration of justice, or attempted to do so, by having the identifying tattoos on his face and neck altered or "covered up." With a resulting offense level of 24 and his criminal history category of II, the guidelines range for the armed bank robbery was 57 to 71 months imprisonment. The conviction for brandishing a firearm during a crime of violence required a mandatory minimum of 84 months imprisonment, consecutive to any other term of imprisonment imposed.

         Watts objected to the two-level enhancement for obstruction of justice, arguing that his conduct in attempting to cover his tattoos should not be considered obstruction under the guidelines. The court noted his objection, but adopted the factual statements in the presentence report and applied the enhancement. The court sentenced Watts to 148 months imprisonment, a term that is within the guideline range calculated in the ...


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