United States v. Howard

* 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opinion should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50885
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MARCUS HOWARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-01-CR-22-ALL
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June 6, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Juan Marcus Howard appeals his conviction and sentence
for bank robbery, a violation of 18 U.S.C. § 2113(a).
Howard argues that the district court erred in denying
his motion for production or disclosure of the identity of the
confidential informant (“CI”) in his case. He believes that the CI
was an acquaintance who, in the days following the January 26,
2001, robbery of the Genco Federal Credit Union (“Genco”), spent
money from the robbery. He asserts that, had the Government been
forced to disclose such identity, he could have shown that it was
the CI, rather than he, who committed the robbery. Howard,
however, has failed to demonstrate that the evidence reflected that

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No. 01-50885
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the CI was significantly involved in the offense, that the
disclosure of the CI’s identity would have helped the defense, or
that the Government’s interest in nondisclosure did not outweigh
his interest in learning of such identity. See United States v.
Sanchez, 988 F.2d 1384, 1391 (5th Cir. 1993); Roviaro v. United
States, 353 U.S. 53, 60-62 (1957). He has not shown that the
district court abused its discretion in denying the motion for
disclosure. Sanchez, 988 F.2d at 1391.
Howard also argues that the district court erred in
imposing a six-level Sentencing Guidelines increase based on his
having “otherwise used” a firearm, under U.S.S.G. § 2B3.1(b)(2)(B).
He maintains that, at worst, a five-level increase for
“brandishing” the firearm was applicable. The district court did
not clearly err in imposing the six-level increase, because the
trial evidence showed that Howard pointed his gun at Genco tellers
and at a customer and that he pushed and shoved the customer.
See United States v. Nguyen, 190 F.3d 656, 661 (5th Cir. 1999)
(explicit verbal threats not required to impose six-level increase
for “otherwise us[ing]” firearm); United States v. Jefferson, 258
F.3d 405, 413 (5th Cir.), cert. denied, 122 S. Ct. 379 (2001); §
1B1.1, comment. (n.1(c))) (2000) (“brandishing” requires only
“display[ ]” of “all or part of the weapon”).
The conviction and sentence are AFFIRMED.

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