United States v. Tolliver

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 19, 2002
• Docket: 01-10097
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10097 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONALD LAVELLA TOLLIVER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CR-84-2-Y -------------------- March 18, 2002

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Ronald Lavella Tolliver appeals his convictions and

sentences for two counts of robbery, two counts of bank robbery,

and four counts of unlawful use of a firearm in connection with a

crime of violence. Tolliver contends that the district court

abused its discretion and deprived him of a fair trial by denying

his pretrial motion to sever the trial of the offenses. Tolliver

asserts that he was prejudiced by the number of offenses; he

asserts that the jury used the fact that he was charged with

eight offenses to find him guilty on all counts despite the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-10097 -2-

dearth of evidence against him and that the district court’s

charge was not sufficient to cure the prejudice that resulted

from the joinder.

Tolliver has not demonstrated that he suffered prejudice as

a result of the district court’s denial of his motion to sever.

See United States v. Ballis, 28 F.3d 1399, 1408 (5th Cir. 1994).

The Government presented the evidence relevant to an individual

robbery and firearm offense before proceeding to the evidence

on the next robbery and firearm offense. Tolliver has not

identified any evidence that was admitted as relevant to one

offense that caused clear prejudice as to another offense. See

United States v. Fortenberry, 914 F.2d 671, 675 (5th Cir. 1990).

Accordingly, Tolliver has not shown that the district court

deprived him of a fair trial and abused its discretion by denying

his motion to sever. Ballis, 28 F.3d at 1408.

Tolliver challenges the consecutive 25-year sentences

that the district court imposed for his second or subsequent

convictions under 18 U.S.C. §§ 924(c)(1). Tolliver contends that

the convictions were imposed simultaneously and that a final

judgment was not entered on any of the convictions. Thus,

Tolliver asserts that the convictions cannot constitute second

or subsequent convictions.

Tolliver’s arguments are foreclosed by our opinion in

United States v. Hebert, 131 F.3d 514, 525 (5th Cir. 1997).

Accordingly, the judgment of the district court is AFFIRMED.