United States v. Bailey

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51132 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY ANDRE BAILEY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-00-CR-51-3 -------------------- June 6, 2002

Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:1

Timothy Andre Bailey has filed an appeal of his conviction and

sentence for aiding and abetting a bank robbery in violation of 18

U.S.C. §§ 2, 2113(a) & (d). Bailey argues that the district court

abused its discretion in refusing to give an aiding and abetting

jury instruction that he requested. In particular, Bailey

requested that the district court instruct the jury that the

Government must establish that he knew that the principal was going

1 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. to rob a bank. Bailey did not cite any legal authority from this

circuit which supports his argument. Because the instruction

proposed by Bailey was not a correct statement of the law in the

circuit and because the district court’s instruction accurately

reflected the law and covered the issues presented in the case, the

district court did not abuse its discretion in not giving the jury

instruction requested by Bailey. See United States v. Chaney, 964

F.2d 437, 444 (5th Cir. 1992).

Bailey also argues that the district court clearly erred in

denying a reduction in his offense level pursuant to U.S.S.G.

§ 3B1.2. He argues that he was entitled such a reduction for his

minor role in the offense because he merely provided the vehicle

which was used in the bank robbery. The district court did not

clearly err in finding that Bailey was not a minor participant, as

the evidence established that he was involved in the planning of

the robbery, he loaned his vehicle to the persons who actually

committed the robbery, he reminded another participant to make a

diversionary bomb threat telephone call, and he received some of

the proceeds of the robbery in exchange for providing his vehicle.

See Burton v. United States, 237 F.3d 490, 504 (5th Cir. 2000);

United States v. Atanda, 60 F.3d 196, 198 n. 1 (5th Cir. 1995).

AFFIRMED.