IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-51015 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

GERALD WAYNE ATKINSON

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-103-1-FB --------------------

August 7, 2000

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Gerald Wayne Atkinson (Atkinson) appeals his conviction

after trial by jury of one count of attempted bank robbery and of

one count of bank robbery. Atkinson argues that the evidence was

insufficient to prove intimidation, an element of bank robbery

under

(a).

Under the concurrent sentence doctrine, the existence of one

valid sentence makes unnecessary the review of other sentences

that run concurrently with it. See United States v. Stovall,

(5th Cir. 1987). Applying the doctrine in a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-51015 -2-

manner that removes the adverse collateral consequences of the

sentence, we have adopted the policy of vacating the unreviewed

sentence and suspending imposition of that sentence.

This

doctrine does not apply when the defendant's liability for a

special assessment depends on the validity of each of the

convictions. See Ray v. United States,

(1987).

The district court sentenced Atkinson to concurrent 57-month

terms of imprisonment and three-year terms of supervised release

for each of the two counts on which he was convicted. It only

imposed a $100.00 special assessment with respect to count two.

As Atkinson's monetary sanctions do not depend on the validity of

each count, we review the sufficiency of the evidence as to count

two only and vacate the sentence imposed under count one. The

unreviewed conviction in no way alters the jury's verdict or the

conviction itself. See United States v. Montemayor,

(5th Cir. 1983). The effect of this judicial action is

to suspend imposition of the sentence.

"In evaluating the sufficiency of the evidence, this court

must determine whether a rational jury could have found evidence

establishing intimidation beyond a reasonable doubt." United

States v. Baker,

(5th Cir. 1994). We consider the

evidence in the light most favorable to the verdict, accepting

all reasonable inferences that support the jury's verdict.

"As used in § 2113(a), the term 'intimidation' means 'to

make fearful or to put into fear.'" United States v. McCarty,

(5th Cir. 1994). Proof of an express verbal

threat, a threatening display of a weapon, or actual fear is not No. 99-51015 -3-

required.

The Government must show only that an ordinary

person in the teller's position would feel a threat of bodily

harm from the defendant's acts.

The facts of this case are similar to the facts of McCarty.

In McCarty, a long-haired robber exhibited a “foreboding

presence.”

. He wore a fake beard, wig, dark

clothing, gloves, and a cap.

. He carried a black

bag.

The robber presented the teller with a note that said,

“Be calm. This is a robbery.”

The robber did not display a

gun or speak to the teller.

. The teller did not

testify directly that she was afraid, but from her testimony the

jury could “glean” her fear.

Although we reviewed this case

under the plain error standard of review, we noted the evidence

satisfied the sufficiency of the evidence standard because “a

rational jury could have found, beyond a reasonable doubt, that

an ordinary person in [the teller’s] position would feel a threat

of bodily harm from [the robber’s] acts.”

.

Similarly, in this case, Atkinson presented the teller with

a note that immediately described his confrontation with her as a

“hold-up.” The note demanded that she fill his backpack with

cash, hand over larger denominations first, and avoid devices

that might foil his robbery. The note also told her to hurry.

The teller testified that although Atkinson did not exert or

expressly threaten physical force or violence, she feared for her

safety and the safety of others, noting that she was concerned

that Atkinson might have a gun. Atkinson’s physical appearance

was foreboding. He was dirty and unshaven, and he wore a heavy No. 99-51015 -4-

jacket in warm weather that could have concealed a gun.

Accordingly, the evidence introduced with respect to count two of

the indictment was sufficient to prove intimidation.

Conviction on count two AFFIRMED; conviction on count one

VACATED under concurrent sentence doctrine.