Appeal from the United States District Court for the District of South Dakota.
The opinion of the court was delivered by: Wollman, Circuit Judge.
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
A jury found Joseph Paul Young guilty of three counts of bank robbery, in violation of 18 U.S.C. § 2113(a). The district court sentenced him to 216 months' *fn1 imprisonment and ordered that the first 36 months of the sentence run concurrently with an undischarged West Virginia sentence. Young appeals, arguing that the district court abused its discretion in admitting certain evidence, procedurally erred by ordering only 36 months to run concurrently to his West Virginia sentence, and imposed a sentence that was substantively unreasonable. We affirm.
Young robbed three different banks in South Dakota between August 13 and September 26, 2007. He wore a baseball hat, the same shirt, and gave similar verbal commands during the robberies. The tellers from each bank identified Young and testified against him. The government sought to admit photos and video surveillance evidence from two Minnesota bank robberies. The district court overruled Young's objection and admitted the evidence, accompanied by a limiting instruction, which was later included with the final jury instructions.
During the sentencing hearing, the district court determined that Young qualified as a career criminal and increased his offense level pursuant to U.S. Sentencing Guidelines Manual (Guidelines) § 4B1.1. After calculating an advisory Guidelines range of 210 to 262 months' imprisonment, the district court imposed a 216-month sentence, with 36 months to run concurrently to Young's prior 240-month undischarged West Virginia sentence for bank robbery.
A. Minnesota Bank Robbery Evidence
Young asserts that the district court committed reversible error when it permitted the government to present evidence of the Minnesota bank robberies. We *fn2 review the district court's admission of evidence for abuse of discretion. See United States v. Hill, 638 F.3d 589, 592 (8th Cir. 2011). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Federal Rule of Evidence 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts "to prove the character of a person in order to show action in conformity therewith." Such evidence is admissible for other limited purposes, however, such as proof of identity. Fed. R. Evid. 404(b).
"Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court" and "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." Fed. R. Evid. 104; United States v. Almendares, 397 F.3d 653, 662 (8th Cir. 2005). When the district court admits evidence that is admissible for one purpose but not admissible for another purpose, "the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." Fed. R. Evid. 105. Relevant evidence may be excluded if its "probative value is substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403.
Young's defense was that he was not the South Dakota bank robber, placing the identity of the robber at issue. The Minnesota bank robbery evidence was thus admissible under Rule 404(b) to prove Young's identity as the South Dakota bank robber. The Minnesota bank robbery evidence was conditionally relevant for that purpose if it was sufficient for a jury to find (1) that Young robbed the Minnesota banks, and (2) that the same person robbed the Minnesota and South Dakota banks.
The district court found that the Minnesota bank robbery evidence was sufficient to support such a finding. "If the conduct underlying the prior act and the current charged offense involved a unique set of 'signature facts,' then evidence of the prior act is admissible to show that the same person committed both crimes."
Almendares, 397 F.3d at 662. "Two factors relevant to this determination are the distinctiveness of the facts that make the crimes unique and the distance between the crimes in space and time." Id. The district court found that "there certainly [was] a signature feature or signature element given that the [robber's] shirt [was] the same and at least in some of these bank robberies the hat [was] the same." Additionally, the Minnesota robberies occurred after the second South Dakota robbery and preceded the third South Dakota robbery. The district court stated that it "almost approache[d] ...