Motion in limine to bar the government from using defendant’s prior convictions; Luce v United States; FRE 609; Identification testimony; FRE 701; Motion to sever a felon in possession (FIP) charge; Whether a 16-month delay in adding the charge indicated “vindictiveness”; Sentencing; Two-level enhancement under USSG § 2B3.1(b)(4)(B) for physically restraining a person “to facilitate commission of the offense”; Use of the higher base offense level under § 2A2.1(a)(1) for attempted first-degree murder after applying the cross-reference at § 2K2.1(c)(1)(A)

The court held that defendant-Howell forfeited his challenge to the denial of his motion in limine to prohibit the government from using his prior convictions to impeach him because he declined to testify at trial. It found any error in the admission of identification testimony harmless and rejected his arguments as to his FIP charge. Finally, it upheld application of §§ 2A2.1(a)(1) and 2B3.1(b)(4)(B) in his sentencing. He was convicted of armed bank robbery, brandishing a firearm during the robbery, attempted armed bank robbery, discharging a firearm during the attempted robbery, and FIP. Two robberies were involved – the “Finger Bank” robbery and the “Reagan Bank” robbery. The court first held that because he declined to testify at trial, he forfeited his challenge to the district court's denial of his motion in limine to bar the government from using his prior convictions to impeach him under FRE 609. He also claimed that the district court erred by denying his motion to preclude a bank manager’s identification testimony, arguing it constituted opinion testimony under FRE 701. The court agreed that her identification was not based on the robbery itself and instead occurred to her after she saw the Reagan robbery on the news and learned Howell had been arrested for the crimes. But it held that reversal was not required because the error was harmless where it did not “substantially sway[]” the jury or affect the outcome of the trial, considering the “overwhelming” evidence against Howell. The court also held that the district court did not err by denying his motion to sever the FIP charge, because there was a strong nexus between the bank robbery and the firearm charges. Further, the 16-month delay in adding the FIP charge did not indicate “vindictiveness” where the government rebutted any such presumption by showing that the additional charge was based on new evidence. As to his 466-month sentence, the court affirmed the enhancement under § 2B3.1(b)(4)(B) for “physically restrain[ing]” a person to facilitate commission of the crime, holding that forcing a bank employee to lie on the floor supported the “restraint” element. It also agreed with the district court’s imposition of a higher base offense level under § 2A2.1(a)(1) for attempted first-degree murder after applying the cross-reference at § 2K2.1(c)(1)(A), where the evidence supported a finding of “specific intent to kill.” Affirmed.