## Facts

- Two armed, masked men in grey sweat suits attempted to rob a Bank One branch in Missouri City, Texas, on December 21, 1994.
- The robbers pointed guns at bank employees, threatened to kill them if they did not cooperate, failed to access the vault, and fled.
- As they left, they threatened to blow up the bank and left two shoebox “bomb” packages that contained non-detonable materials (road flares, wires, and an alarm clock).
- An ATM witness saw two men in grey sweat suits run from the bank with a black duffel bag, enter a parked blue car, and drive away with an apparent third person driving.
- Police soon found a blue car abandoned nearby with the motor running; it belonged to defendant Quinton B. Carr. Around midnight, Carr reported the car stolen.
- The government alleged Joshua Mazique Burton and Wilton Burton (Joshua’s cousin) were the two armed entrants and that Carr knowingly provided the getaway car and assisted with pickup.
- Wilton gave a statement to police implicating Joshua and Carr but recanted at trial, claiming coercion.
- Receipts found in Joshua’s room reflected purchases of a grey sweat suit and a duffel bag similar to those used by the robbers.
- Witness testimony linked Carr to discussions about robbing a bank, a plan to falsely report his car stolen, and vehicle movements before and after the offense consistent with assisting the perpetrators.

## Issues

1. Whether the evidence was sufficient for a rational jury to find beyond a reasonable doubt that Burton and Carr knowingly joined a conspiracy to commit bank robbery and took steps in furtherance of it.
2. Whether the evidence was sufficient to support convictions for attempted bank robbery under 18 U.S.C. §§ 2113(a) and 2.
3. Whether the district court properly applied a six-level sentencing enhancement for “otherwise using” a firearm, rather than a lesser increase for brandishing or possessing it.

## Decision

- The Fifth Circuit affirmed both defendants’ convictions for conspiracy (18 U.S.C. § 371) and attempted bank robbery (18 U.S.C. §§ 2113(a) and 2).
- The court held the evidence, viewed in the light most favorable to the verdict, permitted a rational jury to find the elements of both offenses beyond a reasonable doubt.
- The court upheld the six-level enhancement for “otherwise using” a firearm, based on pointing guns at employees and issuing explicit death threats to compel compliance.

## Legal Principles

- On sufficiency review, the court considers the evidence in the light most favorable to the verdict and asks whether any rational trier of fact could find the essential elements beyond a reasonable doubt.
- A conspiracy may be proven through circumstantial evidence; agreement may be inferred from concert of action rather than direct proof.
- The government need not exclude every reasonable hypothesis of innocence; the jury may choose among reasonable interpretations of the evidence and assess credibility, including weighing a recanted statement against corroborating proof.
- For sentencing purposes, actively pointing a firearm at victims and coupling it with explicit threats of death constitutes “otherwise using” a firearm, not mere brandishing.

## Conclusion

The Fifth Circuit sustained the jury’s verdicts because circumstantial evidence and reasonable inferences supported findings that Burton and Carr participated in a bank-robbery conspiracy and an attempted robbery, and it upheld a six-level firearm enhancement where guns were pointed at employees and used with death threats to control victims during the offense.


United States v. Burton, 126 F.3d 666 (5th Cir. 1997)