United States v. Antarious Caldwell ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-15024
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTARIOUS CALDWELL,
a.k.a. Fat,
a.k.a. Phat,
KEVIN CLAYTON,
ALONZO WALTON,
a.k.a. Spike,
VANCITO GUMBS,
DONALD GLASS,
a.k.a. Smurf,
a.k.a. Dred,
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2 Opinion of the Court 19-15024
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:16-cr-00145-TWT-JKL-39
____________________
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and
COOGLER,* Chief District Judge.
WILLIAM PRYOR, Chief Judge:
This appeal arises from a multiple-count indictment against
dozens of members of the Gangster Disciples. Five of them,
Alonzo Walton, Kevin Clayton, Donald Glass, Antarious Caldwell,
and Vancito Gumbs, appeal their convictions and sentences follow-
ing a joint trial. Some argue that the district court should have sup-
pressed wiretap evidence against them. Some argue that their en-
hanced sentences under the Racketeer Influenced and Corrupt Or-
ganizations Act violate the Sixth Amendment because the jury
failed to find that the conspiracy involved murder. Several argue
that the district court abused its discretion when it refused to play
a video about unconscious bias, excluded a professor of social
work’s expert opinion testimony, secured the defendants with
* Honorable L. Scott Coogler, Chief United States District Judge for the North-
ern District of Alabama, sitting by designation.
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19-15024 Opinion of the Court 3
ankle restraints at trial, allowed the prosecution to store eviden-
tiary firearms in the courtroom, and questioned a witness. And
they also bring individual procedural and sentencing challenges.
We vacate one of Caldwell’s convictions and his sentence due to an
intervening precedent, but we otherwise affirm the convictions and
sentences.
I. BACKGROUND
We divide our review of the background into three parts.
First, we explain the Gangster Disciples gang and the defendants’
roles within it. Second, we describe the crimes relevant to this ap-
peal. Third, we recount the relevant parts of the pretrial proceed-
ings, trial, and sentencing.
A. The Gangster Disciples
The Gangster Disciples began as a loosely affiliated network
of street gangs in Chicago but later became a hierarchical national
organization. At the times relevant to this appeal, that hierarchy
consisted of a “Chairman” and “national board” for the country,
“Governors of Governors” in charge of multi-state regions, “Gov-
ernors” in charge of each state, “Regents” in charge of counties,
and “Coordinators” in charge of municipal-level divisions or, in
larger cities, subdivisions called “counts” or “decks.” Other leaders
had specific portfolios within the gang. For example, the “Chief
Enforcer” managed a team of “Enforcers” who exacted punish-
ments for violations of the gang’s rules, such as the prohibition
against cooperating with the police.
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The investigation that led to this trial and appeal focused on
the activities of a group called the “Hate Committee.” The com-
mittee served as an “enforcement” team for the gang in Georgia.
Donald “Smurf ” Glass led the Hate Committee.
The defendants held a variety of posts within the Georgia
Gangster Disciples. Alonzo “Spike” Walton was Governor. In that
role, he approved all “greenlights” of violent acts by subordinates.
He “stamped”—that is, approved the formation of—the Hate
Committee and integrated it in his chain of command. Kevin
“K.K.” Clayton was Chief Enforcer, responsible for countering in-
ternal threats. In 2013, he earned the dubious distinction of “En-
forcer of the Year.” Clayton had the authority to issue a “green-
light” to punish a Disciple for a violation of the gang’s rules. Don-
ald “Smurf ” Glass was the leader of the Hate Committee and, in
Clayton’s words, his “right hand guy.” In that role, he maintained a
close relationship with committee members. For example, one
member, Quantavious Hurt, lived in his home. Antarious “Fat”
Caldwell was a committee member. Finally, Vancito Gumbs, a po-
lice officer, was a Disciple who worked directly with Clayton.
Quantavious Hurt identified Gumbs as a Disciple, and another po-
lice officer said that Gumbs confessed to being a member and had
Disciple tattoos. A month after the crimes we recount below,
Gumbs expressed remorse for being a “gd hitman” in a text to his
girlfriend.
In November 2013, the Federal Bureau of Investigation se-
cured judicial authority to wiretap Walton’s phone. In the required
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affidavit explaining the necessity for the wiretap, Agent William K.
Murdock explained that no human source had been able to infil-
trate the gang and secure the trust of key members, though three
confidential human sources and four cooperating defendants had
provided some helpful information. In January 2014, the Bureau
requested a 30-day extension of the wiretap. Agent Murdock pro-
vided a similar affidavit, explaining that alternatives to wiretapping
were not viable and that “no viable confidential human sources
have been identified that are able to infiltrate the gang.” He did not
discuss the specific human sources he had mentioned in the first
affidavit. The district judge approved the extension.
B. Relevant Crimes
The indictment charged an array of criminal activities. We
narrate those relevant to this appeal. And we review them in chron-
ological order.
1. Carjacking of Mildred Frederick
Alonzo Walton volunteered to help his friend Mildred Fred-
erick after she damaged her car by failing to put oil in it. His “help”
was insurance fraud: Walton destroyed the car, and Frederick re-
ported it stolen.
Frederick started dating Walton’s friend Laderris Dickerson.
But in March 2014, after Frederick and Dickerson started having
troubles with their relationship, Dickerson and Walton decided to
rob Frederick of the proceeds from the insurance fraud and other
savings.
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Later that month, Walton and Dickerson lured Frederick to
a parking lot with the promise that someone would meet her there
to sell her a car for a good price. The co-conspirators arranged for
another Disciple whom Dickerson did not know to arrive at the
scene and demand Frederick’s cash and rental car at gunpoint. Wal-
ton assured Dickerson that he would use his authority as Governor
to ensure that Frederick would not be harmed.
The plan succeeded. Frederick and Dickerson drove to the
site, and the robber demanded Frederick’s money at gunpoint.
When Frederick said she had only five dollars, Dickerson revealed
that $14,000 was in the glove compartment. Frederick then at-
tacked the robber and wrestled with him for a few seconds before
he took control of her car, kicked her out of it while it was moving,
and sped away. Walton, Dickerson, and the robber split the pro-
ceeds. Dickerson and Frederick surmised that the robber had been
instructed not to use the gun because he had allowed Frederick to
resist without shooting her.
2. Attempted Robbery of Eric Wilder
On June 27, 2015, Caldwell and another Hate Committee
member invaded Eric Wilder’s home to rob him of drugs and
money. The robbers knocked on Wilder’s door and pointed a gun
at him when he cracked it open. Wilder slammed the door shut.
Caldwell fired through the door and hit Wilder in the chest. The
robbers then forced their way into the apartment, stole a small
amount of marijuana, and fled.
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3. Murder of DeMarco Franklin
Hate Committee member Quantavious Hurt murdered De-
Marco Franklin on July 1, 2015. Hurt sparked a dispute with mem-
bers of the Bloods gang when he leaned on one of their cars at a
gas station. After members of the rival gang opened fire, Hurt fled
to a friend’s house. Hurt later went to Glass’s home to inform him
of the situation.
Glass said that the committee needed to “do something
about the situation”—per Hurt’s later trial testimony—because
Hurt’s flight made the committee look bad. Glass apparently pre-
ferred that Hurt’s colleague “handle” the situation—Hurt took this
to mean “shoot somebody.” But Hurt also understood Glass to al-
low Hurt to “handle” the situation if he wanted to. Glass gave Hurt
a symbolic black flag, to remove any fingerprints from the gun he
would use and to cover his face.
Hurt returned to the gas station and found DeMarco Frank-
lin, whom he believed was involved in the first incident. Hurt fol-
lowed Franklin and murdered him in front of his girlfriend and her
four-year-old child. When Hurt reported back, Glass was “in
shock” that Hurt had personally settled the score, but also said that
Hurt “did what [he was] supposed to do.” Hurt later learned that
Franklin had nothing to do with the earlier incident.
4. Stone Mountain Inn and Central Avenue Shootings
The spree of violence continued two days later on July 3.
Glass planned a robbery of the Stone Mountain Inn, where a drug
dealer named “Zay” based his operations. Zay was a member of
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the Stone Mountain “deck” of the Gangster Disciples who came
from North Carolina. These Disciples were not “plugged in”—that
is, not “stamped official” or initiated “full member[s]” of the gang.
The Hate Committee aborted its initial attempt to rob the drug
dealer at the Inn because police officers were there. Some Hate
Committee members returned in the evening to “chill” with the
Stone Mountain Gangster Disciples. A dispute broke out over the
status of the out-of-town Disciples as “plugged in.” Acting on a
standing order from Glass against Disciples who were not plugged
in, the Hate Committee attacked the Stone Mountain Disciples and
killed Edward Chadmon. A member of the Hate Committee, Ro-
dricious Gresham, was wounded in the firefight.
The Hate Committee held a meeting to discuss the injury of
one of its own. At the meeting, the ranking Disciple decided that
the Stone Mountain deck was to blame for the incident. That deck
would be “put on hold,” or excommunicated, and the Hate Com-
mittee was given an “S.O.S.,” or “smash on [sight],” order to “[k]ill,
beat, [and] assault” any members of the deck. Glass provided weap-
ons and ammunition for the attack and passed along the directive
to “apply pressure” by killing and assaulting people.
Members of the Hate Committee opened fire on a crowd on
Central Avenue in the Stone Mountain area and injured a by-
stander. When the members returned to Glass’s home afterward,
he appeared to approve of their actions and encouraged them to
“continue” with the same activity. The committee members went
back to Central Avenue, murdered Rocqwell Nelson, and injured a
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woman standing with Nelson on her patio. When they returned to
Glass, he again praised their actions and encouraged them to con-
tinue. Again the group went out, greeted “White Boy”—a member
of the “on hold” Stone Mountain deck—, then shot him in the
stomach at point-blank range. Again, Glass was “pleased” with the
result.
5. Murder of Robert Dixon
The last crime relevant to this appeal was Glass’s killing of
Robert “Rampage” Dixon in August 2015. Dixon was accused of
stealing from another Disciple in violation of gang rules. Accord-
ing to Gresham, a Hate Committee member and prosecution wit-
ness, Glass gave a “greenlight” to punish Dixon for this violation.
Glass recruited other Disciples to “go holler” at Rampage. He
brought Dixon outside the apartment where Dixon was staying to
“talk,” but after a few minutes of talking, according to a witness,
Glass pulled out his gun and shot Dixon in the head, killing him.
C. Pretrial and Trial Proceedings
The principal charge against all the defendants was count
one, which charged that the defendants conspired to “conduct and
participate directly and indirectly in the conduct of [the Gangster
Disciples] through a pattern of racketeering activity” in violation
of the Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. § 1962(c). The indictment also charged the defendants with
the enhanced sentencing provision of the Act, see id. § 1963(a), for
joining and remaining in the conspiracy “knowing and agreeing
that members of the enterprise engaged in acts involving murder,
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in violation of Official Code of Georgia 16-5-1.” The indictment
named 34 defendants, and this appeal concerns the joint trial of
Alonzo Walton, Kevin Clayton, Donald Glass, Antarious Caldwell,
and Vancito Gumbs, who were convicted, and Perry Green, who
was acquitted.
Before trial, Gumbs moved the district court to show pro-
spective jurors a video on unconscious bias prepared by the district
court for the Western District of Washington. See Unconscious Bias
Juror Video, United States District Court for the Western District of
Washington, https://www.wawd.uscourts.gov/jury/uncon-
scious-bias. He also proposed a list of voir dire questions about
their possible unconscious biases and requested that the prospec-
tive jurors be given accompanying jury instructions. The instruc-
tions told the jurors that they “must not be influenced by” their
unconscious biases—the same biases the instructional video as-
serted were “automatic” and inevitable.
The district court denied the motion. It described “a lot of
this discussion” about unconscious bias as “politically correct non-
sense . . . not based on any valid scientific or empirical study.” It
doubted that the Western District of Washington could know that
the jurors in Georgia were unconsciously biased and worried about
telling the jurors at the outset that they were biased. The district
court expressed concern that the video would “cause jurors to
question their ability to make judgments based upon their com-
mon sense”; would “suggest that jurors of one race . . . should
think that the opinions of a juror of another race are based on bias
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and prejudice” to the detriment of collective deliberation; and
would be ineffective in ameliorating the cultural differences be-
tween the prospective jurors and the defendants.
The district court later denied Gumbs’s motion, filed six
business days before trial, to admit Dr. Roberto Aspholm as an ex-
pert witness. Aspholm, a professor of social work, researched and
taught about the Gangster Disciples. Gumbs said that Aspholm’s
testimony would illuminate the structure of the Gangster Disci-
ples, on which the prosecution’s theory of a unified criminal organ-
ization depended. He did not explain the basis of Aspholm’s pro-
posed testimony except that it would be “based on his years of first-
hand (particularly university/academic-based) investigations.” The
district court denied Gumbs’s motion as untimely and because the
explanation of the proffered testimony was inadequate. See FED. R.
CRIM. P. 16(b)(1)(C) (2018). When the prosecution introduced non-
expert testimony about the structure of the Gangster Disciples,
Gumbs moved again to be allowed to call Aspholm to rebut that
testimony, but the district court denied the request.
The district court ordered that all the defendants be secured
with ankle restraints throughout the trial. Over the defendants’ ob-
jections, the district court accepted the marshal’s request to restrain
the defendants “because of the number of the defendants and the
difficulty of preventing an incident if they collectively decided that
something was going to happen.” The district court ordered that
the chains be muffled, that no restraints be visible, and that the de-
fendants enter the courtroom before the jurors and remain seated
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so that the jury would never see the chains. And at the outset of
trial, the district court requested that a defendant stand up to test
whether the restraints would be audible when the defendants rose
and sat. The defendants were each seated next to their counsel, so
they could consult with them despite the restraints.
The district court allowed the prosecution to bring firearms
as evidence. The prosecution was permitted to bring the firearms
into the courtroom and store them in boxes next to the counsel
table for the duration of the day in which they would be used. The
district court denied Gumbs’s request to keep the boxes outside the
jury’s sight.
The district court denied a motion to suppress the fruits of
the extension of the wiretap of Walton’s phone. Clayton argued
that the extension was unlawful because the underlying supporting
affidavit was incomplete and the application did not provide the
court with statutorily mandated information. See 18 U.S.C.
§ 2518(1)(c). The district court denied the motion to suppress on
the ground that the application was adequate despite any omission.
It concluded, in the alternative, that suppression was not justified
because there was no allegation that the affidavit was intentionally
deceptive or reckless with respect to the truth or that the failure to
discuss the human sources was material to the statutory criteria for
a wiretap. See Franks v. Delaware, 438 U.S. 154, 171–72 (1978). The
district court also ruled that the good-faith exception to the exclu-
sionary rule foreclosed suppression of the fruits of the wiretap. See
United States v. Leon, 468 U.S. 897, 922–24 (1984).
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At the end of the prosecution’s case-in-chief, the district
court asked Agent Murdock whether DeKalb County, in which the
events to which he had testified took place, was within the North-
ern District of Georgia. Murdock said yes; no one objected; and the
government rested.
The verdict form proposed by the district court asked
whether each defendant was guilty of “Count One of the indict-
ment charging RICO conspiracy” and whether “the RICO conspir-
acy involve[d] murder.” The second question corresponded to the
notice of enhanced sentencing in the indictment, which depended
on a finding that “members of the enterprise engaged in acts in-
volving murder, in violation of Official Code of Georgia 16-5-1.”
See GA. CODE § 16-5-1 (defining malice and felony murder and set-
ting the maximum penalty at death); 18 U.S.C. § 1963(a).
Walton, in an objection all the defendants joined, argued
that the district court should specify that “to find the Enhanced sen-
tence for murder,” the jury must find beyond a reasonable doubt
that “the Defendants joined and remained in the RICO conspiracy
charged in Count One knowing and agreeing that members of the
enterprise engaged in acts involving murder.” Gumbs contended
that his verdict form should ask whether he was guilty of “conspir-
acy to commit murder.” The district court overruled the objec-
tions. The final verdict form for each defendant included an inter-
rogatory that asked whether “the RICO conspiracy involve[d] mur-
der.”
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The relationship between the two questions for count one
was muddled in the jury instructions. For count one, the jury had
to find a “pattern of racketeering activity” to convict, which meant
that it had to find that at least two racketeering acts were commit-
ted by members of the criminal enterprise. See 18 U.S.C. §§ 1962(c),
1961(5). The indictment alleged ten types of racketeering acts. In
its instructions, the district court labeled three of these categories
of racketeering acts—Georgia-law actual murder, attempted mur-
der, and conspiracy to commit murder—as “acts involving mur-
der.” The district court defined “murder” to mean only actual mur-
der, not any inchoate version of that offense. The enhanced sen-
tencing provisions applied to the defendants only if a racketeering
act on which the conviction was based was actual “murder” because
the enhanced sentencing provisions require a racketeering act pun-
ishable by life imprisonment. See id. § 1963(a); GA. CODE §§ 16-5-
1(e)(1), 16-4-6, 16-4-8. In closing arguments, the prosecution elided
this distinction and argued that the special interrogatory in the ver-
dict form asked whether the Gangster Disciples “engaged in acts
involving murder, which includes murder and attempted murder.”
The jury returned mixed verdicts. Walton was convicted of
the racketeering conspiracy, carjacking Frederick, and using a fire-
arm during that carjacking. See 18 U.S.C. § 2119; id. § 924(c)(3)(A).
Clayton was convicted of the racketeering conspiracy only. Glass
was convicted of the racketeering conspiracy, acquitted of the mur-
der of Robert Dixon, convicted of carrying a firearm during a
crime of violence, namely the killing of Robert Dixon, id.
§ 924(c)(3)(A), convicted of causing the death of Robert Dixon
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with a firearm, see id. § 1111, and acquitted of two marijuana pos-
session charges. Caldwell was convicted of the racketeering con-
spiracy, the attempted Hobbs Act robbery of Eric Wilder, see id.
§ 1951, and carrying a firearm during a crime of violence, the at-
tempted robbery, see id. § 924(c)(3)(A). Vancito Gumbs was con-
victed of the racketeering conspiracy. For each of the convicted de-
fendants, the jury found that “the RICO conspiracy involve[d] mur-
der.” The jury acquitted a sixth codefendant, Perry Green.
At sentencing, the defendants objected to the recommenda-
tion in the presentence investigation report that they receive en-
hanced sentences under the Racketeer Influenced and Corrupt Or-
ganizations Act. The Act provides for a maximum sentence of life
imprisonment instead of only 20 years if “the violation is based on
a racketeering activity for which the maximum penalty includes life
imprisonment.” Id. § 1963(a). The defendants argued that the ver-
dict form question whether “the RICO conspiracy involve[d] mur-
der” asked the jury whether the conspiracy involved either actual
murder or inchoate versions of that offense. Because the jury ver-
dict did not distinguish between actual murder, which can support
a life sentence under Georgia law, and inchoate forms of murder,
which cannot, they argued that their sentences could not exceed 20
years. See id. They styled this objection as an argument that a sen-
tence based on the finding of actual Georgia-law murder would vi-
olate the Sixth Amendment. See Apprendi v. New Jersey, 530 U.S. 466,
476 (2000).
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The district court disagreed. It reasoned that the verdict
form said “murder” without mentioning the inchoate forms, so the
district court was “convinced beyond any doubt that . . . the jury
meant . . . malice murder.” It sentenced the defendants under the
enhanced sentencing provisions.
The district court imposed lengthy sentences of imprison-
ment. Walton received 384 months of imprisonment. Clayton re-
ceived 396 months of imprisonment. Glass received a sentence of
life imprisonment plus 120 months. Caldwell received 360 months
of imprisonment. And Gumbs received 180 months of imprison-
ment.
II. STANDARDS OF REVIEW
Several standards of review govern this appeal. We review
the conduct of voir dire, the refusal to admit expert opinion testi-
mony, the decision to shackle the defendants, the regulation of the
use of firearms as courtroom evidence, and the judge’s decision to
question a witness for abuse of discretion. United States v. Hill, 643
F.3d 807, 836 (11th Cir. 2011) (conduct of voir dire); St. Louis Condo.
Ass’n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235, 1242 (11th Cir. 2021) (ex-
pert testimony and evidentiary rulings); United States v. Baker, 432
F.3d 1189, 1245 (11th Cir. 2005) (shackling determination), abro-
gated on other grounds by Davis v. Washington, 547 U.S. 813, 821 (2006);
United States v. Day, 405 F.3d 1293, 1297 (11th Cir. 2005) (judge’s
engagement with witness testimony).
When reviewing the denial of a motion to suppress wire-
tapped communications, we review legal conclusions de novo and
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factual findings for clear error. United States v. Goldstein, 989 F.3d
1178, 1192–93 (11th Cir. 2021). Preserved Apprendi challenges are
reviewed de novo. United States v. Candelario, 240 F.3d 1300, 1306
(11th Cir. 2001). We review the legal correctness of jury instruc-
tions de novo, but the district court has “wide discretion as to the
style and wording employed.” Bhogaita v. Altamonte Heights Condo.
Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014) (citation omitted).
And “[w]e reverse only where we are left with a substantial and in-
eradicable doubt as to whether the district court properly guided
the jury.” Id. (citation and internal quotation marks omitted). Suf-
ficiency of the evidence is reviewed de novo, and we ask whether
“no rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Morel, 63
F.4th 913, 917 (11th Cir. 2023) (citation omitted).
We “review the reasonableness of a sentence for abuse of
discretion using a two-step process.” United States v. Feldman, 931
F.3d 1245, 1254 (11th Cir. 2019) (citation omitted). First, we deter-
mine whether there was a “significant procedural error,” including
failing to consider the statutory factors, ignoring or miscalculating
the guideline range, or “failing to adequately explain the chosen
sentence.” Id. (citation omitted). Second, we evaluate the substan-
tive reasonableness of the sentence. Id. At that stage, the defendant
“has the burden of showing that the sentence is unreasonable in
light of the entire record, the [section] 3553(a) factors, and the sub-
stantial deference afforded sentencing courts.” United States v. Fox,
926 F.3d 1275, 1282 (11th Cir. 2019) (citation and internal quotation
marks omitted). The interpretation of statutory terms like “crime
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18 Opinion of the Court 19-15024
of violence” is reviewed de novo. United States v. Johnson, 399 F.3d
1297, 1298 (11th Cir. 2005).
Issues that are not properly preserved by timely objection
are reviewed for plain error. Puckett v. United States, 556 U.S. 129,
134–35 (2009). We can correct such errors if they are plain, if they
affect a substantial right, and “if the error seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings.” United
States v. Laines, 69 F.4th 1221, 1229 (11th Cir. 2023) (citation omit-
ted).
III. DISCUSSION
We divide our discussion into 13 parts. In the first five parts,
we explain why the district court did not abuse its discretion in its
pretrial and trial procedural decisions. In the next two parts, we ad-
dress the defendants’ arguments that their convictions must be
overturned because the wiretap evidence should have been sup-
pressed and because the defendants should not have been subject
to enhanced sentencing provisions. We then turn to five individual
challenges to convictions and sentences. And finally, we briefly ex-
plain that Caldwell’s sentence must be vacated because of United
States v. Taylor, 142 S. Ct. 2015 (2022).
A. The District Court Did Not Abuse Its Discretion When It Declined to
Play a Video about Unconscious Bias.
The defendants argue that the district court should have re-
quired the jury venire during voir dire to watch a video about un-
conscious bias to mitigate potential racial bias against them and
that the district court should have given corresponding jury
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instructions. Although the district court sometimes has an obliga-
tion to permit defendants “to ask questions about racial bias during
voir dire,” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017); see
also Ham v. South Carolina, 409 U.S. 524, 526–27 (1973), it retains
“broad discretion to manage voir dire,” United States v. Tsarnaev, 142
S. Ct. 1024, 1036 (2022). We have never held that a district court
must conduct unconscious bias training or allow unconscious bias
questioning during voir dire.
The district court did not abuse its discretion. Jurors are en-
titled—indeed, expected—to make inferences based on common
sense. See, e.g., United States v. Marino, 562 F.2d 941, 944–45 (5th Cir.
1977); Pattern Crim. Jury Instr. 11th Cir. BI B4 (2020) (“In consider-
ing the evidence you may use reasoning and common sense to
make deductions and reach conclusions.”). The proffered video, in
contrast, labels all deeply ingrained judgments based on experi-
ence, even those not based on racial, religious, or other protected
characteristics, as “biases.” And it encourages jurors to second-
guess their conclusions and to engage in counterfactual thought
experiments flipping the age, race, or gender of various trial partic-
ipants. The district court reasonably determined that the video
could “cause jurors to question their ability to make judgments
based upon their common sense and experience.” The video en-
courages jurors to doubt their own conclusions and the conclu-
sions of their peers, and to presume that any decision is tainted by
an “automatic” and unavoidable bias. It was also not an abuse of
discretion to conclude that it would be harmful to jury delibera-
tions to suggest to the jurors that they should be suspicious of their
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20 Opinion of the Court 19-15024
prospective colleagues’ decisions based on the possibility of uncon-
scious racial bias. And, insofar as racial biases stemming from cul-
tural differences could have tainted the trial, the district court rea-
sonably doubted “that a ten-minute video from the district court
in Washington is going to ameliorate in any way th[ose] cultural
differences.” See United States v. Mercado-Gracia, 989 F.3d 829, 839–
41 (10th Cir. 2021) (upholding a rejection of the same video).
The district court also did not abuse its discretion when it
declined to ask questions during voir dire about unconscious bias.
The choice of procedure to identify and respond to bias on the part
of potential jurors is left to the “sound discretion” of the district
court. Hill, 643 F.3d at 836 (citation omitted). The district court
highlighted serious concerns with juror education materials and in-
structions that simultaneously tell each potential juror that he has
inevitable unconscious biases and that he has a legal duty not to let
these unconscious biases influence him. Gumbs does not dispute
that the district court allowed some questions that explicitly
touched on potential racial bias by jurors; it barred only the uncon-
scious-bias line of questioning.
B. The District Court Did Not Abuse Its Discretion When It Declined to
Admit Dr. Aspholm’s Expert Testimony.
The defendants next argue that the district court abused its
discretion when it declined to admit the expert opinion testimony
of Dr. Roberto Aspholm about the nature and structure of the
Gangster Disciples. The district court found that Gumbs’s disclo-
sure was untimely and inadequate. The defendants contend that
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19-15024 Opinion of the Court 21
Gumbs’s disclosure was timely because it gave the prosecution sev-
eral weeks of notice before Aspholm would testify even though it
had only six business days before trial began. And they contend that
even if Gumbs’s initial disclosure was untimely, Aspholm should
have been allowed to testify to rebut the prosecution’s portrayal of
the gang. The defendants argue that the disclosure was specific
enough to provide the prosecution fair notice of the content of As-
pholm’s testimony. See FED. R. CRIM. P. 16(b)(1)(C) (2018). The dis-
trict court’s decision was not “manifestly erroneous,” United States
v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc) (citation
omitted), with respect to any ground, so we affirm.
It was not an abuse of discretion to find that Gumbs did not
provide timely notice of the testimony. Gumbs filed his notice only
six business days before trial began. The district court determined
that six business days before a complicated multidefendant trial was
insufficient time for the prosecution to prepare a rebuttal of As-
pholm’s testimony or to secure a comparable expert witness to re-
spond to his testimony. And it reasonably concluded that it was un-
fair to ask the government to formulate its response after the trial
had started.
Although not in effect when the trial occurred in 2019, the
revised Rules explicitly adopt this commonsense proposition. The
current version of Rule 16, effective as of December 1, 2022, re-
quires that notice of expert opinion testimony come “sufficiently
before trial” for adequate preparation and does not measure time-
liness based on the expected date of the testimony. FED. R. CRIM. P
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22 Opinion of the Court 19-15024
16(b)(1)(C)(ii) (2022) (emphasis added). We are loath to condemn
as an abuse of discretion a decision of the district court that accords
with the rule that would apply today, particularly where the earlier
rule was silent on the issue.
The defendants’ defense for Gumbs’s late disclosure—that
he did not realize until shortly before trial that the prosecution
would portray the Gangster Disciples as a hierarchical criminal
conspiracy—is frivolous. The second paragraph of the indictment
alleges that the Gangster Disciples “employ a highly structured or-
ganization” to commit their crimes. That portrayal was never in
doubt. For the same reason, the district court did not abuse its dis-
cretion when it declined to reconsider admitting Aspholm after the
prosecution presentation of the structure of the Gangster Disci-
ples.
The district court also did not abuse its discretion when it
ruled that Gumbs failed to provide an adequate description of As-
pholm’s testimony and “the bases and reasons for those opinions.”
FED. R. CRIM. P. 16(b)(1)(C) (2018). Gumbs never informed the
prosecution of the sources on which Aspholm would base his tes-
timony. The best explanation of Aspholm’s testimony came in
Gumbs’s reply to the government’s opposition to his admission.
That document states Aspholm’s conclusions that “the Gangster
Disciples is not and has not been the unitary, tightly organized,
structured, coordinated, and controlled organization that the Gov-
ernment characterizes it as” and that the organization “sometimes
serves political, philosophical, cultural, and even quasi-religious
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19-15024 Opinion of the Court 23
functions” instead of criminal ones. The district court did not abuse
its discretion when it found vague references to “interviewing and
field work . . . and statistical analysis” and “research, analysis, and
teaching,” on gangs in general to be an inadequate explanation of
the basis for Aspholm’s opinions.
C. The Ankle Restraints Did Not Violate the Defendants’ Rights.
Gumbs, Glass, and Caldwell argue that the district court
abused its discretion when it ordered them to be restrained at the
ankles throughout trial. They argue that the district court failed to
conduct an individualized inquiry into their dangerousness and to
give notice of the grounds for its decision. This argument fails.
Our legal tradition strongly disfavors visibly restraining
criminal defendants. As the Supreme Court explained, “Blackstone
wrote that ‘it is laid down in our antient books, that, though under
an indictment of the highest nature,’ a defendant ‘must be brought
to the bar without irons, or any manner of shackles or bonds; un-
less there be evident danger of an escape.’” Deck v. Missouri, 544
U.S. 622, 626 (2005) (quoting 4 WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND *322). “[T]he use of
physical restraints visible to the jury” is prohibited “absent a trial
court determination, in the exercise of its discretion, that they are
justified by a state interest specific to a particular trial.” Deck, 544
U.S. at 629. This rule exists to prevent prejudice to the presumption
of innocence, the right to counsel, and the dignity of criminal pro-
ceedings. Id. at 630–31.
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24 Opinion of the Court 19-15024
The common-law rule against shackling prevents creating
an unfair impression of guilt for the jury and is limited to contexts
that implicate that danger. We have held the rule does not apply to
proceedings in which the jury is not present, such as sentencing.
United States v. LaFond, 783 F.3d 1216, 1225 (11th Cir. 2015). In re-
jecting a petition for a writ of habeas corpus, we have explained
that Supreme Court precedents about shackling “are not applicable
to security devices or measures that are not visible.” Nance v. War-
den, Ga. Diag. Prison, 922 F.3d 1298, 1305 (11th Cir. 2019). And we
have never reversed a conviction based on the use of restraints in-
visible to the jury. See, e.g., Baker, 432 F.3d at 1246; United States v.
Mayes, 158 F.3d 1215, 1226–27 (11th Cir. 1998); United States v. Bat-
tle, 173 F.3d 1343, 1346–47 (11th Cir. 1999).
We reject the defendants’ challenge because the record
makes clear that the ankle restraints were not perceptible to the
jury and no defendant alleges that he lacked access to counsel. The
district court ordered that the restraints be placed on the defend-
ants’ legs only, that they be muffled to prevent clanking, that a cur-
tain around the defense table conceal them from the jury, and that
the defendants enter and exit the courtroom outside the presence
of the jury. The defendants unpersuasively complain that the dis-
trict court could have done more to investigate the possibility of
prejudice. They also make the unsubstantiated assertion that the
ankle restraints “very probably caused fear of the defendants.” The
district court took steps to verify that the restraints were impercep-
tible, so we do not credit the defendants’ speculation about the ju-
rors’ perceptions.
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19-15024 Opinion of the Court 25
D. The District Court Did Not Abuse Its Discretion in Regulating the
Use of Firearms as Evidence.
Gumbs, Glass, and Caldwell argue that the prosecutors’ use
of firearms as physical evidence at trial violated their right to due
process by undermining the presumption of innocence. They con-
tend that the district court should have granted Gumbs’s motion
to “prohibit the storing of weapons in the courtroom, in boxes,
from which boxes various of those weapons regularly were ex-
tracted, paraded around the court room, and handed to the jurors
to pass amongst themselves.” They argue that there was “no real
reason” for this procedure except to paint the defendants as “dan-
gerous renegade[s].” We disagree.
The district court followed a reasonable procedure for han-
dling the weapons. The prosecution showed the weapons as evi-
dence to prove the charged crimes that involved firearms at trial.
The defendants fail to substantiate their accusation that the weap-
ons were stored in this manner solely to prejudice them. And they
fail to mention any specific instances where the prosecution used
the guns in an inappropriate way. The district court reasonably bal-
anced the inconvenience of storing the weapons in a separate room
against the prejudice of piling up weapons in the courtroom and
struck a sensible balance in which the guns were kept out of view
in boxes and the boxes were limited to those needed that day. The
district court did not abuse its discretion.
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26 Opinion of the Court 19-15024
E. The District Court Did Not Impermissibly Depart from Neutrality
When It Questioned a Witness.
Caldwell, Gumbs, and Walton contend that the district court
committed plain error and deprived them of a fair trial when it
asked a prosecution witness whether DeKalb County—the loca-
tion of some of the criminal activity he described—is in the North-
ern District of Georgia. That DeKalb County is within the North-
ern District of Georgia established venue, see United States v. Snipes,
611 F.3d 855, 865–66 (11th Cir. 2010), so the defendants contend
that the question unfairly helped the prosecution. We disagree.
The trial judge is “more than a referee to an adversarial pro-
ceeding.” United States v. Harris, 720 F.2d 1259, 1261 (11th Cir. 1983).
Consistent with the common-law tradition, the judge may “com-
ment on the evidence” and “question witnesses and elicit facts not
yet adduced or clarify those previously presented.” Moore v. United
States, 598 F.2d 439, 442 (5th Cir. 1979). This questioning is limited
only by the principle that a judge must maintain neutrality between
the parties. See id. (approving a trial judge’s decision to ask 105
questions of the defendant).
The district judge stayed well within these bounds. He asked
a single question without commenting on the veracity or relevance
of the witness’s testimony. The legal status of DeKalb County is a
“legislative fact” not particular to the parties, so the district court
was entitled to instruct the jury that the county was within the
Northern District of Georgia. See FED. R. EVID. 201, advisory com-
mittee notes to 1972 proposed rules; United States v. Bowers, 660 F.2d
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19-15024 Opinion of the Court 27
527, 530–31 (5th Cir. Unit B 1981). The district court did not err, let
alone clearly err, when it asked a witness for that information.
F. The District Court Correctly Declined to Suppress the Fruits of the Ex-
tended Wiretap.
Clayton and Walton argue that the district court should have
suppressed the fruits of the January 2014 extension of the wiretap
on Walton’s phone. They argue that Murdock failed to provide the
required “full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they rea-
sonably appear to be unlikely to succeed if tried or to be too dan-
gerous,” 18 U.S.C. § 2518(1)(c), because his extension application
did not discuss the seven human sources mentioned in the initial
application. They also argue that Franks v. Delaware does not limit
the suppression of the fruits of wiretaps and that the good-faith
exception to the suppression remedy also does not apply to wiretap
cases. Because the district court properly applied Franks and the
good-faith exception to the motion to suppress, we do not reach
the argument that its ruling on section 2518(1)(c) was erroneous.
Franks addressed the suppression of evidence obtained pur-
suant to a warrant obtained through an affidavit containing false
information. Franks, 438 U.S. at 155; see U.S. CONST. amend. IV
(“[N]o Warrants shall issue, but upon probable cause . . . .”). The
Court held that a factual error requires suppression of the evidence
the warrant produced only if the defendant establishes “deliberate
falsehood or . . . reckless disregard for the truth” by the affiant and
“if, when material that is the subject of the . . . falsity or reckless
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28 Opinion of the Court 19-15024
disregard is set to one side,” probable cause would not support the
warrant. Franks, 438 U.S. at 171–72; see also id. at 156. The defend-
ants argue that Franks does not limit the statutory suppression rem-
edy that applies to wiretaps obtained through a defective applica-
tion. See 18 U.S.C. § 2518(10)(a)(i).
We have consistently applied Franks to motions to suppress
the evidentiary fruits of wiretaps. See United States v. Capers, 708
F.3d 1286, 1296 n.6 (11th Cir. 2013) (“The rule in Franks has since
been held applicable to affidavits submitted in support of court-or-
dered electronic surveillance.”); accord United States v. Malekzadeh,
855 F.2d 1492, 1497 (11th Cir. 1988); United States v. Novaton, 271
F.3d 968, 984, 986 (11th Cir. 2001); United States v. Votrobek, 847 F.3d
1335, 1342 (11th Cir. 2017); United States v. Perez, 661 F.3d 568, 581
n.18 (11th Cir. 2011). Based on this binding precedent, we reject the
defendants’ challenge because they have failed to allege that Mur-
dock asserted “deliberate falsehoods” or exhibited “reckless disre-
gard for the truth.” Franks, 438 U.S. at 171. And we affirm on the
alternative ground that, as the defendants concede, our precedent
also bars suppression of evidence obtained in good-faith reliance
on a court-approved wiretap. See Leon, 468 U.S. at 922–24; Malekza-
deh, 855 F.2d at 1496–97 (applying Leon to a motion to suppress the
fruits of a wiretap). The defendants do not dispute the district
court’s determination that law enforcement acted in good faith.
G. The Sentences Do Not Violate Apprendi.
Walton, Clayton, Glass, and Caldwell contend that their sen-
tences are unconstitutional because they rest on enhanced
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19-15024 Opinion of the Court 29
sentencing provisions of the Racketeer Influenced and Corrupt Or-
ganizations Act for which, they argue, the jury did not make the
requisite findings. Gumbs joins this argument insofar as it bears on
the district court’s exercise of discretion in sentencing him. The de-
fendants contend that the district court’s alleged misreading of the
jury’s verdicts violates the Sixth Amendment requirement that
“any fact other than a prior conviction that increases the penalty
for a crime” must be found by a jury beyond a reasonable doubt.
Candelario, 240 F.3d at 1303 (citations omitted and alterations
adopted); see Apprendi, 530 U.S. at 476. We disagree.
This argument involves an unpreserved objection to the ver-
dict form and jury instructions masquerading as an Apprendi chal-
lenge. Apprendi forbids a district court from making a factual find-
ing necessary for an increased criminal penalty; only a jury may
make that finding. Apprendi, 530 U.S. at 476. Here, the relevant fac-
tual finding was that the conspiracy involved actual murder, not at-
tempted murder or conspiracy to commit murder. See supra Part
I.C. The district court did not purport to find this fact when it ap-
plied the enhanced sentencing provisions. It instead determined
that the jury’s verdict form reflected that the jury had made that
finding beyond a reasonable doubt. Clayton argues that because the
verdict form was unclear—an objection we address below—the dis-
trict judge had to “speculat[e]” about what the jury found and that
Apprendi forbids that kind of speculation. But Apprendi does not ad-
dress the district court’s duty to interpret jury verdicts. It addresses
a trial judge’s inability to make factual findings that alter the pen-
alty for a crime. See, e.g., Candelario, 240 F.3d at 1304. The
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30 Opinion of the Court 19-15024
defendants argue that the district court misread the jury verdict and
then applied the wrong statutory punishment based on that mis-
take. That argument does not implicate Apprendi.
The jury found that the conspiracy included actual, not in-
choate, murder as part of its racketeering activities. Although the
prosecutor in closing arguments elided the difference between the
“acts involving murder” that could serve as predicate racketeering
activities for conviction on count one and the actual “murder” re-
quired for the enhanced sentencing provision, the district judge did
not make the same mistake. He instructed the jury that “acts in-
volving murder” for the purposes of finding the two racketeering
activities needed for conviction extended to Georgia-law conspir-
acy to commit murder and attempted murder. But the district court
never said that the jury should read the phrase “involve murder” to
mean “involve acts involving murder.” The district court specifi-
cally defined “murder” to include only actual murder under Geor-
gia law, which is “a racketeering activity for which the maximum
penalty includes life imprisonment,” 18 U.S.C. § 1963(a); see GA.
CODE § 16-5-1(e)(1). And the verdict form asked whether the con-
spiracy “involve[d] murder,” not “acts involving murder.” The plain
meaning of this phrase is that the question concerns what the dis-
trict court defined as murder, not what the district court defined as
acts involving murder. Any other reading would render the interrog-
atory purposeless; if it asked about “acts involving murder,” it
would not have any implications for the defendants’ convictions or
sentences. The district court correctly concluded that the jury
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19-15024 Opinion of the Court 31
found that the conspiracy involved actual murder, as required for
the enhanced sentencing provision.
As the government suggests, one could understand the de-
fendants to argue that the jury verdict form was so unclear that the
jury was confused about what it was being asked, but that chal-
lenge is unpreserved and meritless at this late stage. A challenge to
jury instructions or the verdict form after the jury has delivered its
verdict is too late. United States v. Mitchell, 146 F.3d 1338, 1342 (11th
Cir. 1998). None of the defendants raised the ambiguity on which
they now rely before jury deliberations. Walton, in an objection the
other defendants joined, specifically argued that the verdict form
ought to ask whether the conspiracy included “acts involving mur-
der.” We explain in the next section why the district court did not
err when it rejected Gumbs’s requested verdict form, but his objec-
tions to the proposed verdict forms did not rely on the difference
between actual and inchoate murder. So the defendants never ade-
quately brought the problem to the district court’s attention, and
our review is for plain error. Id.“Meeting all four prongs [of the plain-error test] is difficult,
as it should be,” Puckett, 556 U.S. at 135 (citation and internal quo-
tation marks omitted), and the defendants do not even attempt to
establish that the district court plainly erred in a way that preju-
diced them. The defendants offer no caselaw that establishes that it
was “obvious or clear under current law,” Candelario, 240 F.3d at
1309 (citation and internal quotation marks omitted), that the ver-
dict form should have been phrased differently or that a specific
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32 Opinion of the Court 19-15024
clarifying instruction was necessary. Nor have they established a
“reasonable probability,” United States v. Shelton, 400 F.3d 1325,
1331–32 (11th Cir. 2005), that the jury would have found that the
conspiracy involved only attempted murder or a conspiracy to
commit murder. And the record was replete with evidence of ac-
tual murders by members of the Gangster Disciples. Because of
these deficiencies, we need not address the other elements of the
plain-error test.
H. Gumbs’s Challenges to His Jury Verdict Form and Conviction Fail.
Gumbs contends that the district court should have used his
preferred verdict form and that the failure to do so resulted in his
being convicted on legally insufficient evidence. Glass agrees that
the district court should have given Gumbs’s proposed instructions.
Gumbs’s proposed verdict form asked whether he was guilty of
“conspiracy to commit murder” and required the jury to name the
intended victim of the murder if it answered affirmatively. Gumbs
contends that there was no evidence from which the jury could
have reasonably found that he was involved in the Gangster Disci-
ples conspiracy before the murders alleged in the indictment took
place. He argues that a properly instructed jury would not have
found that he was part of a conspiracy in which actual murder was
involved, so his sentencing guidelines calculation was erroneous.
We disagree.
The district court acted within its “wide discretion” when it
rejected Gumbs’ proposed verdict form and jury instructions.
Bhogaita, 765 F.3d at 1285. For the enhanced sentencing finding,
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19-15024 Opinion of the Court 33
Gumbs wanted the district court to ask the jury whether Gumbs
was guilty of “conspiracy to commit murder.” That question could
have easily misled the jury to believe that the object of the conspir-
acy had to be murder, when the relevant question was whether
Gumbs was vicariously liable for a murder that was part of the pat-
tern of racketeering activity that supported the conspiracy in
which he was involved. See 18 U.S.C. §§ 1962(c), 1963(a). Moreover,
Gumbs identifies no precedent supporting his request that the jury
name the victim murdered. And as we have explained above, the
district court gave accurate instructions and provided a verdict
form for which no plain error has been established.
Gumbs has also not established that there was insufficient
evidence that he was a member of a conspiracy that involved mur-
der. He maintains that two key pieces of evidence tying him to the
conspiracy—the wiretapped conversations between him and Wal-
ton and the text messages to his girlfriend in which he described
himself as a “gd hitman”—took place after the murders alleged in
the indictment. But this fact does not allow us to set aside the jury’s
verdict. Even on its own terms, Gumbs’s argument does not make
sense; a jury could fairly infer that if Gumbs expressed regret for
being a hitman for the Gangster Disciples in August 2015, then he
was already a Disciple only a month earlier during the July 2015
wave of violence. And other evidence presented at trial could sup-
port the finding that he was in the Gangster Disciples earlier than
he argues. Quantavious Hurt testified that he knew Gumbs was
part of the gang, and Gumbs joined the police force with what at
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34 Opinion of the Court 19-15024
least one witness identified as preexisting Gangster Disciples tat-
toos.
I. Clayton’s Sentence Was Not Based on Clearly Erroneous Facts.
Clayton argues that we should vacate his sentence because
it rested on clearly erroneous findings of fact. The district court
explained that his 33-year prison sentence was “appropriate” be-
cause of the violent acts that the Gangster Disciples committed and
because Clayton “was a high-ranking official” in the organization
and had a role “of encouragement, recruitment, and applauding
acts including murder that took place by others.” Clayton argues
that this description of his role was clearly erroneous because he
did not personally recruit certain members of the Hate Committee
nor encourage the Central Avenue murders in advance. But the dis-
trict court committed no clear error.
Clayton’s objection to the description of his role as “a high-
ranking official” who was involved in recruiting criminals and en-
couraging murder is frivolous. Clayton admits that he was at one
time “Chief Enforcer” for the Gangster Disciples—and indeed “En-
forcer of the Year” in 2013. Ample testimony supported a finding that
this role required violence, up to murder, to enforce gang disci-
pline. Clayton also misses the mark when he argues that he did not
initially recruit the individuals the prosecution mentioned at sen-
tencing and did not know about the Central Avenue murders in ad-
vance. Wiretap evidence establishes that Clayton consistently held
himself out as responsible for Hate Committee activities and for
recruiting younger members of the Gangster Disciples to new roles
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19-15024 Opinion of the Court 35
in the gang. Clayton called Glass, the leader of the Hate Commit-
tee, his “right hand guy.” He referred to the younger members of
the Hate Committee as “KK shooters,” a reference to his nickname,
and he boasted that he “brought the shooters to the . . . eastside.”
Likewise, Clayton’s argument that the prosecution did not know
exactly when he was Chief Enforcer is irrelevant to the findings un-
derpinning his sentence; the district court did not rest its sentenc-
ing on a finding that Clayton was Chief Enforcer at a particular
time.
J. Sufficient Evidence Supported Glass’s Racketeering Conviction.
Glass challenges his conviction for the racketeering conspir-
acy on the ground that the jury acquitted him of the only predicate
racketeering activities for which he was indicted. See United States
v. Browne, 505 F.3d 1229, 1257 (11th Cir. 2007) (explaining that a
racketeering conviction requires finding at least “two predicate
racketeering acts”). He argues that because the jury acquitted him
of the murder of Robert Dixon and for possessing drugs with intent
to distribute them—the only crimes that were predicate “racket-
eering activities”—there must have been insufficient evidence for
his conviction for the racketeering conspiracy. We disagree.
The jury was instructed that to convict on the racketeering
conspiracy, it had to find two predicate acts on the list of several
acts alleged in count one, which included many more crimes be-
sides those specifically charged as traceable to Glass. We presume
the jury followed this instruction. See United States v. Kennard, 472
F.3d 851, 858 (11th Cir. 2006). It could have relied on any two of
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36 Opinion of the Court 19-15024
the acts described in count one. And settled precedent bars Glass’s
argument that there must not have been sufficient evidence for
count one based on acquittal on the other counts. “[I]nconsistency
between verdicts on different counts of the indictment does not vi-
tiate convictions on those counts of which the defendant is found
guilty.” United States v. Rosenthal, 793 F.2d 1214, 1229 (11th Cir.
1986).
K. Glass’s Sentence Is Reasonable.
Glass challenges his prison sentence of life-plus-ten-years as
procedurally and substantively unreasonable. He argues that his
sentence was procedurally unreasonable because the district court
miscalculated the guidelines range, based his sentence on clearly
erroneous factual findings, and failed to consider the statutory fac-
tors for sentencing. He argues that his sentence is substantively un-
reasonable because the district court impermissibly weighed the
statutory sentencing factors and sentenced him unfairly compared
to his co-defendants. Each challenge fails.
1. Procedural Reasonableness
Glass reiterates, in the form of a guidelines challenge, the
supposed Apprendi argument that we have already rejected. A sen-
tence is procedurally unreasonable if the district court miscalcu-
lated the relevant guidelines range for a defendant. Gall v. United
States, 552 U.S. 38, 51 (2007). Glass argues that the district court
miscalculated his guideline range because it misread the verdict
form to mean that the jury found the conspiracy involved actual,
not inchoate, forms of murder. We reject this argument for the
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19-15024 Opinion of the Court 37
reasons we explained in Part III.G. He also argues that the district
court must have relied on the Dixon murder to calculate his base
offense level as corresponding to that of murder, but he misunder-
stands the record: the district court based his offense level on his
conviction on count one for a conspiracy that “involve[d] murder,”
regardless of the Dixon killing.
Aside from his guideline challenge, Glass argues that the dis-
trict court sentenced him based on clearly erroneous factual find-
ings. See id. (explaining that a sentence can be procedurally unrea-
sonable if it is “select[ed] based on clearly erroneous facts”). Glass
argues that the district court clearly erred when it said that he was
the person in the case most responsible for “a trail of murder, may-
hem, maiming and destruction of life” and found that he “physi-
cally murder[ed] Robert Dixon” and “directed [the Hate Commit-
tee’s] teenage assassins to go out and simply randomly shoot, mur-
der and maim people who were doing nothing other than just go-
ing about their lives.”
None of these findings is clearly erroneous. Glass’s only re-
sponse to the findings is that he did not “corrupt[] an entire gener-
ation of teenagers” but rather “provided encouragement and sup-
port to local youth, including [Quantavious] Hurt.” This assertion
does not establish that the district court clearly erred. Ample evi-
dence supported the finding that Glass led the Hate Committee
that perpetrated the Central Avenue murders: multiple witnesses
so identified him. Glass’s assertion that he was a positive influence
on local youth is belied by the uncontradicted evidence that he, for
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38 Opinion of the Court 19-15024
example, encouraged the Hate Committee to continue the Central
Avenue crimes after their first sortie and that he helped secure the
weapons for the crimes. So it was not clearly erroneous to find that
he was uniquely responsible for the violence and “directed” the
Hate Committee to commit violent crimes.
Although Glass asserts that he was “disappointed” to learn
that Hurt killed Demarco Franklin, Hurt testified that Glass told
him that he did what he was “supposed to do.” In any event, noth-
ing contradicts Hurt’s testimony that Glass ordered that someone
engage in a reprisal killing after Hurt’s dispute with the Bloods at
the gas station. And notwithstanding Glass’s acquittal of Dixon’s
murder under Georgia law, a district court is entitled to rely on ac-
quitted conduct at sentencing if it finds that the conduct occurred
based on a preponderance of the evidence. United States v. Faust,
456 F.3d 1342, 1347 (11th Cir. 2006). Multiple witnesses testified
that Glass killed Dixon. Moreover, the jury found that Glass
“cause[d] the death of Robert Dixon” in violation of federal law.
Glass’s assertion that the district court failed to consider his
individual characteristics is likewise meritless. See 18 U.S.C.
§ 3553(a)(1) (requiring that the district court consider “the history
and characteristics of the defendant”). Glass complains that the dis-
trict court did not “mention[ his] personal history and characteris-
tics,” such as his difficult childhood. But the district court need not
discuss each factor under section 3553(a), see United States v. Wil-
liams, 526 F.3d 1312, 1322 (11th Cir. 2008). And the district court
stated that it did consider Glass’s history and characteristics,
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19-15024 Opinion of the Court 39
presumably including the very facts he now cites, in selecting his
sentence.
2. Substantive Reasonableness
Glass argues that his sentence is substantively unreasonable
because it relied solely on one factor—protecting the public—in
neglect of all other sentencing factors and because his sentence is
much harsher than those of his codefendants. He also reiterates his
argument that his sentence could not be based on the murder of
Robert Dixon. We reject Glass’s substantive challenge.
Our review is highly deferential. United States v. Irey, 612
F.3d 1160, 1191 (11th Cir. 2010) (en banc). A district court has dis-
cretion to assign relative weight to different sentencing factors, and
the defendant has the “burden of showing that the sentence is un-
reasonable in light of the entire record, the [section] 3553(a) factors,
and the substantial deference afforded sentencing courts.” Fox, 926
F.3d at 1282 (citation omitted). Glass has not satisfied this heavy
burden.
As we explained above, the district court did not clearly err
when it found that Glass led the murderous Hate Committee and
killed Robert Dixon. Glass received a harsher sentence than other
leaders of the gang and other murderers, but he was the only de-
fendant who combined leadership in the Gangster Disciples with
personal commission of murder. It was not an abuse of discretion
to give him the harshest sentence.
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40 Opinion of the Court 19-15024
L. Sufficient Evidence Supports the Finding that Walton Intended to
Cause Death or Serious Bodily Harm in the Frederick Carjacking.
Walton argues that his carjacking conviction and related
firearm conviction must be vacated because there was insufficient
evidence that he intended for Frederick to be seriously harmed or
killed in the plot to rob her at gunpoint. The carjacking statute pro-
hibits “tak[ing] a motor vehicle” involved in interstate commerce
“with the intent to cause death or serious bodily harm.” 18 U.S.C.
§ 2119. Walton concedes that he conspired to rob Frederick, but he
denies that the prosecution proved that he intended to “cause
death or serious bodily harm.” But “drawing all reasonable infer-
ences and credibility choices in the Government’s favor,” Browne,
505 F.3d at 1253, we conclude that sufficient evidence supported
the jury’s finding that Walton had the requisite intent for his con-
viction.
The prosecution can prove the “intent to cause death or se-
rious bodily harm,” 18 U.S.C. § 2119, by proving that when the de-
fendant demanded or took control of the car, he “possessed the in-
tent to seriously harm or kill the driver if necessary to steal the car.”
Holloway v. United States, 526 U.S. 1, 12 (1999) (emphasis added). It
is not necessary that the defendant expect or desire that serious
harm or death would result. Id. at 7. Frederick was robbed without
being seriously harmed or killed, so the prosecution had to prove
that the conspirators intended that she be seriously harmed or
killed if, counterfactually, it had been necessary.
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19-15024 Opinion of the Court 41
Walton acknowledges that he and Dickerson planned to
bring a gang member who did not know Frederick to rob her at
gunpoint, but he argues that the jury could not have reasonably
found that his intent was that the robber use that gun if necessary.
Dickerson testified that Walton assured him that he would use his
authority as Governor to ensure that Frederick would not be
harmed. And Walton argues that a robber who intended to use
deadly force to ensure the success of the robbery would have shot
Frederick when she attacked him. Both Frederick and Dickerson
testified that they thought the robber would have used his gun if
he had not been instructed that he could not.
Pointing a gun at someone and demanding money is the
kind of evidence on which prosecutors may rely to prove the mens
rea for carjacking. See, e.g., United States v. Douglas, 489 F.3d 1117,
1128 (11th Cir. 2007), abrogated in part on other grounds by Perry v.
New Hampshire, 565 U.S. 228, 237–38 (2012); United States v. Diaz,
248 F.3d 1065, 1097–98 (11th Cir. 2001). And drawing all inferences
against Walton, as we must, Browne, 505 F.3d at 1253, the jury’s
verdict was reasonable, even if it was “not inevitable,” id. A jury
was not required to credit the testimony of Dickerson about the
importance of protecting his girlfriend when he orchestrated a
scheme to have her robbed at gunpoint. Dickerson’s testimony was
probative of Walton’s intent only if the jury believed both Dicker-
son’s account of what Walton said and that Walton told Dickerson
the truth.
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42 Opinion of the Court 19-15024
Nor is Frederick’s resistance—or the lack of a more forceful
response to it—decisive. The robber knew that Dickerson was in
on the plan, so he knew that Dickerson would not assist Frederick,
who was not as much of a threat by herself. He was also willing to
use enough force to kick her out of the car while it was moving,
suggesting he did not share Dickerson’s supposed concern for Fred-
erick’s safety. A jury could have reasonably found that the robber
declined to use force sufficient to seriously harm or kill Frederick
only because it was unnecessary, not because he was told he could
not use that force.
M. Caldwell’s Conviction Under the Armed Career Criminal Act and His
Sentence Must Be Vacated.
After briefing closed in this appeal, we granted Caldwell per-
mission to file a supplemental brief based on intervening precedent
to challenge his conviction for using a firearm “during and in rela-
tion to a crime of violence, that is[,] the robbery of E[ric] W[ilder].”
Count 17 of the indictment contemplated that the offense of at-
tempted Hobbs Act robbery, 18 U.S.C. § 1951, is a “crime of vio-
lence” within the meaning of the Armed Career Criminal Act, id.§ 924(c)(3)(A). But the Supreme Court recently held in Taylor that
attempted Hobbs Act robbery is not a “crime of violence” under
section 924(c). 142 S. Ct. at 2020. So we must vacate Caldwell’s con-
viction. We remand for the district court to resentence Caldwell
for his remaining counts of conviction. See United States v. Fowler,
749 F.3d 1010, 1017 (11th Cir. 2014).
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19-15024 Opinion of the Court 43
IV. CONCLUSION
We VACATE Caldwell’s conviction on count 17 of the in-
dictment and his sentence and REMAND for resentencing. We
AFFIRM all the other convictions and sentences.