United States v. Brandon Payne ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15699
Non-Argument Calendar
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D.C. Docket No. 2:08-cr-00367-WS-N-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON PAYNE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(August 15, 2014)
Before ED CARNES, Chief Judge, HULL and FAY, Circuit Judges.
PER CURIAM:
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Brandon Joseph Payne pleaded guilty to one count of bank robbery, in
violation of 18 U.S.C. § 2113(a), (d), and one count of possession of a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). He received a
30-month sentence on the bank robbery count and a mandatory minimum 84-
month sentence on the firearm count, with the sentences to be served
consecutively. Payne appeals his sentence, arguing that the district court violated
his Sixth Amendment rights, as interpreted in Alleyne v. United States, — U.S. —,
133 S. Ct. 2151 (2013), when it sentenced him to the mandatory minimum
sentence on the firearm charge.
I.
The following facts were recounted at Payne’s plea hearing. On September
13, 2007, Payne served as the getaway driver in an armed robbery of the People’s
Bank and Trust in Valley Grande, Alabama. His three accomplices –– Lindera
Chapman, Joshua Davis, and Timothy King –– entered the bank that day carrying a
shotgun, a revolver, a pistol, and duct tape. They demanded that one of the bank
tellers open the vault, and one of the defendants used the shotgun “to divert the
[security] cameras.” Payne and his compatriots took $5,826 from the bank and
fled. At his plea hearing, Payne admitted those facts and acknowledged that he
had “knowingly participated in an armed robbery of a bank.” However, he
asserted that he did not enter the bank and could not “admit to exactly what
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happened inside.” During the hearing the district court told Payne that if he was
convicted of the firearm offense he “could receive a term of imprisonment of no
less than [84 months]” and that the sentence would be “consecutive to the sentence
imposed” on the bank robbery count. Payne pleaded guilty to both counts charged
against him in the indictment.
The PSR prepared for Payne’s sentencing recounted the facts of the crime as
stated at the plea hearing with one difference: It noted that one of Payne’s
accomplices had pointed a pistol at a bank teller during the robbery. Based on that
fact, the PSR concluded that Payne was subject to an 84-month mandatory
minimum sentence to be served consecutive to his sentence for the bank robbery
charge. See 18 U.S.C. § 924(c)(1)(A)(ii) (providing that a defendant convicted
under § 924(c)(1)(A) must be “sentenced to a term of imprisonment of not less
than [84 months]” if a firearm is brandished during the crime of violence). Payne
objected to the PSR’s determination that he was subject to that 84-month
mandatory minimum. Because his indictment had not specifically mentioned the
brandishing provision of § 924(c)(1)(A) and he had never admitted at his plea
hearing that a firearm was brandished, he asserted that sentencing him to the
mandatory minimum would violate his Fifth Amendment due process rights and
his Sixth Amendment rights, as interpreted in Alleyne v. United States, — U.S. —,
133 S. Ct. 2151 (2013).
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In light of Payne’s objection, the district court decided to hear evidence to
determine whether a firearm had been brandished during the bank robbery. At the
sentence hearing, a bank teller working at People’s Bank and Trust at the time of
the robbery testified that one of the defendants had pointed a pistol in her face
during the robbery. Payne’s attorney cross-examined that witness. He did not call
any witnesses of his own to rebut the teller’s testimony. Based on the evidence
presented, the district court concluded that a gun had been brandished during the
bank robbery, and it sentenced Payne to the 84-month mandatory minimum
sentence on his § 924(c)(1)(A) conviction.
II.
Payne’s primary contention on appeal is that the district court violated his
Sixth Amendment rights, as interpreted in Alleyne v. United States, — U.S. —,
133 S. Ct. 2151 (2013), when it sentenced him to the 84-month mandatory
minimum sentence based on its own finding that a firearm was brandished during
the robbery. 1 We review de novo the alleged Alleyne error. United States v. King,
1
Payne also appears to challenge the sufficiency of his indictment on the ground that it
failed to allege that a firearm was brandished during the robbery, and it failed to cite to the
specific subsection of 18 U.S.C. § 924(c)(1)(A) that provides that an 84-month mandatory
minimum applies when a firearm is brandished, see 18 U.S.C. § 924(c)(1)(A)(ii). But that
argument does not call into question the district court’s jurisdiction. See United States v. Brown,
No. 13-10023, — F.3d —, 2014 WL 2200395, at *5 (11th Cir. May 28, 2014) (noting that an
indictment’s failure to allege the drug quantity that triggered a higher statutory maximum
sentence was not a jurisdictional defect and stating that an indictment’s failure to allege an
essential element of a crime does not deprive the district court of jurisdiction). Therefore, the
challenge has been waived by Payne’s guilty plea. See United States v. Betancourth, 554 F.3d
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751 F.3d 1268, 1278–79 (11th Cir. 2014). If an Alleyne error occurred, we will
vacate Payne’s sentence unless the error was harmless beyond a reasonable doubt.
Id. at 1279 (“We further hold that Alleyne violations are subject to harmless error
review.”). Under harmless error review, we must affirm Payne’s sentence if the
brandishing fact “is supported by uncontroverted evidence” and the record does not
“contain[] evidence that could rationally lead to a contrary finding.” United States
v. Candelario, 240 F.3d 1300, 1308 (11th Cir. 2001) (quotation marks omitted).
Under Alleyne, any fact that increases the mandatory minimum sentence for
a crime must be admitted by a defendant or be submitted to a jury and found
beyond a reasonable doubt. 133 S.Ct. at 2163; cf. Blakely v. Washington, 542
U.S. 296, 303, 124 S.Ct. 2531, 2537 (2004) (“Our precedents make clear, however,
that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.”). In this case, Payne did not admit at his plea hearing
that a firearm had been brandished during the bank robbery that he committed. He
1329, 1332 (11th Cir. 2009) (“A defendant who enters an unconditional plea of guilty waives all
nonjurisdictional challenges to the conviction, but challenges to the subject matter jurisdiction of
the federal courts cannot be waived.”). In any event, Payne cannot credibly contend that he had
insufficient notice that he would be subject to the mandatory minimum because the penalty page
of his indictment stated that that mandatory minimum sentence applied to the § 924(c)(1)(A)
count and the district court told him at his plea hearing that he “could receive a term of
imprisonment of no less than seven years” on that count.
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stated that he did not know “exactly what happened inside the bank” because he
had been waiting in the getaway car. Nevertheless, the district court sentenced him
to a mandatory minimum sentence after making its own finding that a firearm had
been brandished during the robbery. In doing so, the district court erred under
Alleyne because it sentenced Payne to a mandatory minimum sentence based on its
own conclusion about brandishing, instead of Payne’s admission or a jury’s finding
concerning that fact.
Nevertheless, the district court’s error was harmless beyond a reasonable
doubt. As we have explained with regard to Apprendi errors, such errors are
harmless beyond a reasonable doubt when there is “uncontroverted evidence”
supporting a statutory fact that alters the range of possible sentences a defendant
may receive. See Candelario, 240 F.3d at 1308 (quotation marks omitted). The
same reasoning applies to Alleyne errors because Alleyne is an extension of
Apprendi. See King, 751 F.3d at 1278–79; United States v. McKinley, 732 F.3d
1291, 1295 (11th Cir. 2013). In this case, the district court’s error was harmless
beyond a reasonable doubt because the government presented uncontroverted
evidence that a firearm was brandished during the bank robbery in which Payne
participated. A teller working at the bank when the crime was committed testified
that one of Payne’s codefendants pointed a pistol at her during the robbery. That
testimony was unrefuted, and therefore “it is clear beyond a reasonable doubt that a
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rational jury would have found” that a firearm was brandished. 2 See United States
v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000) (quotation marks omitted); see also
18 U.S.C. § 924(c)(4) (“For purposes of this subsection, the term ‘brandish’ means,
with respect to a firearm, to display all or part of the firearm, or otherwise make
the presence of the firearm known to another person, in order to intimidate that
person, regardless of whether the firearm is directly visible to that person.”).
AFFIRMED.
2
We reject Payne’s contention that he could be sentenced under § 924(c)(1)(A)(ii) only if
he admitted or a jury found that he “knew that the firearm[] would be brandished.” To the
contrary, Payne could be found liable so long as he was an “active participant” in the bank
robbery and he “kn[ew] that one of his confederates [was carrying] a gun.” Rosemond v. United
States, — U.S. —, 134 S.Ct. 1240, 1249 (2014). He admitted both of those facts at his plea
hearing. It does not matter whether Payne knew that one of his codefendants would actually
brandish a gun in the bank. See United States v. Williams, 334 F.3d 1228, 1230, 1232–33 (11th
Cir. 2003) (upholding 10-year mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A)(iii)
for defendant who participated in bank robbery in which one of his codefendants “accidentally”
discharged his assault rifle during the robbery) (emphasis added).
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