United States v. Sherond Duron King

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16268
________________________
D.C. Docket No. 1:12-cr-20367-FAM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHEROND DURON KING,
a.k.a. Ron,
a.k.a. Shearon King,
a.k.a. Shearond King,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 9, 2014)
Before HULL, BLACK and FARRIS, * Circuit Judges.
PER CURIAM:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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Sherond Duron King, Jr., appeals his convictions and sentences arising from
a string of armed robberies he committed in July 2011. Specifically, a jury
convicted King of (1) conspiring to interfere with commerce by robbery, in
violation of 18 U.S.C. § 1951(a); (2) obstructing interstate commerce by robbing
My Dream Coin Laundry, in violation of 18 U.S.C. § 1951(a); (3) using, carrying,
or possessing a firearm in furtherance of the My Dream Coin Laundry robbery, in
violation of 18 U.S.C. § 924(c)(1)(A); (4) obstructing interstate commerce by
robbing a MetroPCS store, in violation of 18 U.S.C. § 1951(a); (5) using, carrying,
or possessing a firearm in furtherance of the MetroPCS robbery, in violation of 18
U.S.C. § 924(c)(1)(A); (6) obstructing interstate commerce by robbing a Subway
store, in violation of 18 U.S.C. § 1951(a); (7) using, carrying, or possessing a
firearm in furtherance of the Subway robbery, in violation of 18 U.S.C.
§ 924(c)(1)(A); (8) obstructing interstate commerce by robbing a BP gas station, in
violation of 18 U.S.C. § 1951; and (9) using, carrying, or possessing a firearm in
furtherance of the BP robbery, in violation of 18 U.S.C. § 924(c)(1)(A). The
district court sentenced King to a total of 1,062 months’ imprisonment, and he now
pursues numerous issues on appeal. We conclude the arguments King raises on
appeal fail, and we therefore affirm his convictions and sentences.
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I. BACKGROUND
On July 9, 2011, King and another man, Graylin Kelly, robbed My Dream
Coin Laundry in Miami Shores, Florida. 1 According to Nickelson Charles, an
employee of the laundromat who was working that night, King was wearing a
white tank top and had dreadlocks while Kelly was wearing a jacket. The two men
entered the store and walked around the laundromat for 10 to 20 minutes.
Eventually, one of the men asked Charles to make change and, once he opened the
cash register, King pointed a gun at Charles’s face and demanded the money from
the register. After King again demanded that Charles turn over the money and
threatened to shoot him, Charles opened the cash register and gave King all of the
money in the drawer.
Several days after the robbery, Charles identified King as the robber from a
photographic lineup. Charles was unable to identify Kelly, but stated he could not
forget King’s face. Detective Kerry Turner with the Miami Shores Police
Department created the lineup by using six photographs, including a picture of
King from his recent booking following his arrest. In the array, King is shown
wearing a white tank top. Detective Turner testified that he chose not to use
King’s driver’s license photograph because the booking photograph was more
1
Kelly pled guilty and is not a party to the instant appeal.
3
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recent. In selecting the photographs for the array, Detective Turner looked for
individuals with similar facial features and hairstyles.
On July 12, 2011, three days after the My Dream Coin Laundry robbery,
King and Kelly robbed a MetroPCS store. After the men entered the store, King
approached the store manager. King pulled out a gun, pointed it at the manager,
and told him to “open the safe.” The manager put the cash register box on the
counter and stared at King. In response, King pointed the gun at the manager and
said “don’t look at me, don’t look at me.” King and Kelly then took the money
and ran out of the store.
Subsequently, a police officer showed Judith Brea, an employee who was
present in the store at the time of the robbery, a photographic lineup. Brea
immediately identified King as one of the robbers. The officer also showed Jose
Enrique Lantigua, the store manager, a photographic lineup from which he
identified King as the robber.
Later on July 12, 2011—the same day as the MetroPCS robbery—King and
Kelly robbed a Subway store. The men entered the store and looked around.
While Arthur Joseph, an employee at the Subway, waited for King and Kelly to
decide what to order, another Subway employee, Treniese Stubbs, was working at
the cash register. When Stubbs opened the cash register, King suddenly pulled out
a gun, pointed it at her head, and demanded the money from the register. After
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taking the money, the men ran out of the store. Several days after the robbery, a
police officer showed Joseph a photographic lineup from which Joseph identified
King as the man who pointed a gun at Stubbs and demanded the money. An
officer also showed Stubbs a photographic lineup from which she identified King
as the man who pointed a gun at her and took the money from the cash register.
On July 13, 2011, the day after the Subway and MetroPCS robberies, King
and Kelly robbed a BP gas station. After entering the store at the gas station, King
waited in line at the cash register until he reached the front of the line, at which
point he aimed a gun at Wilmer Pineda, the employee working the cash register,
and demanded the money from the register. King took the money from the cash
register and he and Kelly left the store. Approximately one week after the robbery,
Pineda identified King from a photographic lineup as the man who took the money
from the register. Fanor Saravia, a man who maintained the landscaping at the BP
station and who was present inside the store during the robbery, also identified
King from a photographic lineup as one of the robbers.
A federal grand jury returned an indictment charging King with conspiring
to rob, as well as actually robbing, the My Dream Coin Laundry, the MetroPCS
store, the Subway store, and the BP gas station. The indictment also charged King
with knowingly using, carrying, or possessing a firearm in furtherance of each of
the robberies.
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Prior to trial, King filed a motion to suppress the witnesses’ out-of-court
identifications of him and to prohibit the witnesses from identifying him in court.
King argued the procedures used during the photographic lineups were unduly
suggestive and that the witnesses’ identifications were not reliable. Following an
evidentiary hearing, the district court denied the motion to suppress. 2
King’s case proceeded to trial. After the Government rested its
case-in-chief, King moved for a judgment of acquittal on the firearms counts,
arguing there was insufficient evidence the gun he used was real and met the
statutory definition of a firearm. The district court denied the motion, and,
following the close of the defense case, King renewed his motion for a judgment of
acquittal. The district court again denied the motion, and the jury found King
guilty on all counts.
At the sentencing hearing, using information from the presentence
investigation report, the district court calculated a base offense level of 24 for
King’s conspiracy and robbery convictions and determined King had a criminal
history category of III, yielding a guidelines range of 63 to 78 months’
imprisonment. King’s guidelines range on the firearms convictions was a
mandatory 984-month sentence, composed of a consecutive seven-year sentence
2
The district court again denied the motion to suppress after hearing the trial testimony,
finding that the photographic lineups were not unduly suggestive and that the identifications
were reliable.
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on Count Three for brandishing a firearm, and consecutive terms of 25 years’
imprisonment for each of his three other firearms convictions (Counts Five, Seven,
and Nine). King’s resulting guidelines range was 1,047 to 1,062 months’
imprisonment.
King objected to the seven-year mandatory minimum sentence for
brandishing a firearm, arguing that based on the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and under the Fifth
and Sixth Amendments, the element of “brandishing” had to be charged in the
indictment and found by the jury beyond a reasonable doubt. King recognized
that, at the time, his argument was foreclosed by Supreme Court precedent, but he
nonetheless raised the objection to preserve the issue in light of the Supreme
Court’s then-recent grant of certiorari in Alleyne v. United States, 133 S. Ct. 420(2012).
The district court sentenced King to a total sentence of 1,062 months’
imprisonment. King’s total sentence was comprised of concurrent terms of 78
months’ imprisonment on the conspiracy and substantive robbery counts (Counts
One, Two, Four, Six, and Eight); a consecutive term of 84 months’ imprisonment
on his first firearm count (Count Three); and 300 months’ imprisonment on each of
his three other firearms counts (Counts Five, Seven, and Nine), which were
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imposed to run consecutively to his other sentences and to each other. King
objected to the reasonableness of the sentence and this appeal followed.
II. ANALYSIS
King raises six issues on appeal. He argues that (1) the Government did not
present any evidence the gun he used during the four robberies met the legal
definition of a firearm and his § 924(c) convictions should therefore be vacated;
(2) the district court abused its discretion by refusing to give a jury instruction
regarding cross-race identifications; (3) the district court should have excluded
Charles’s identification of King because the photo array used to obtain the
identification was unduly suggestive; (4) the cumulative effect of the district
court’s purported errors requires reversal; (5) the district court erred by imposing
mandatory minimum sentences on his firearm offenses because the jury did not
find he brandished a firearm beyond a reasonable doubt, nor did it find his other
firearm convictions were “second or subsequent”; and (6) his sentence is
unreasonable. We address each issue in turn.
A. Legal Definition of a Firearm
King argues that because the police never recovered the gun he used during
the robberies and the Government did not introduce the gun into evidence at trial,
no evidence existed that the gun met the legal definition of a firearm codified in 18
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U.S.C. § 921(a)(3).3 He contends the lay testimony of the victims of the robberies
was insufficient to prove beyond a reasonable doubt that the gun was designed “to
expel a projectile by the action of an explosive.”
King’s argument is foreclosed by this Court’s decision in United States v.
Woodruff, 296 F.3d 1041, 1049 (11th Cir. 2002). In Woodruff, we rejected the
identical argument King now asserts, holding that “the [G]overnment need not
show to a scientific certainty that a defendant is carrying a device that fires
projectiles by means of an explosive.” Id. Thus, “the [G]overnment need not offer
the gun itself into evidence or produce an expert witness to identify a ‘firearm.’”
Id. Instead, “[t]he Government must present sufficient testimony, including the
testimony of lay witnesses, in order to prove beyond a reasonable doubt that a
defendant used, possessed or carried a ‘firearm’ as that term is defined for
purposes of § 924(c).” Id.
Viewing the evidence in the light most favorable to the Government and
drawing all reasonable inferences in favor of the jury’s verdict, see United States v.
Isnadin, 742 F.3d 1278, 1303 (11th Cir. 2014), sufficient evidence established that
3
Section 921(a)(3) defines a firearm as:
(A) any weapon (including a starter gun) which will or is designed to or may
readily be converted to expel a projectile by the action of an explosive; (B) the
frame or receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device. Such term does not include an antique
firearm.
18 U.S.C. § 921(a)(3).
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the gun King used in each of the robberies was a firearm within the meaning of
§ 921(a)(3). The jury heard testimony from victims of each of the robberies,
several of whom had the weapon thrust directly in their faces. Each of the seven
eye witnesses testified that King pointed a gun during the commission of the
offense, and the record also indicates that the jurors saw surveillance footage and
still photographs of each armed robbery. Contrary to King’s arguments, in order to
carry its burden of proof on the § 924(c) counts, the Government did not need to
rely on expert testimony, introduce the weapon at trial, or otherwise demonstrate
that the gun used during the robberies was actually fired or discharged. Woodruff,
296 F.3d at 1049. On this record, we are satisfied that a reasonable trier of fact
could find the evidence established King was guilty of the § 924(c) offenses
beyond a reasonable doubt. See Isnadin, 742 F.3d at 1303 (“Evidence is sufficient
to support a conviction if a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” (internal quotation marks omitted)).
B. Jury Instruction on Cross-Race Identification
King contends the district erred by refusing to give a jury instruction
regarding the unreliability of cross-race identifications. King argues his theory of
defense was premised on the fact that he is an African-American man and that the
witnesses who identified him were not African-American individuals, thus
rendering their identifications inherently unreliable.
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We review for abuse of discretion a district court’s refusal to give a
requested jury instruction. United States v. McQueen, 727 F.3d 1144, 1154 (11th
Cir. 2013). A criminal defendant is entitled to have the jury instructed regarding
his theory of defense “separate and apart from instructions given on the elements
of the charged offense if there has been some evidence adduced at trial relevant to
that defense.” Id. (internal quotation marks omitted). We view the evidence in the
light most favorable to the defendant in determining whether there was a proper
evidentiary foundation for the instruction. United States v. Palma, 511 F.3d 1311,
1315 (11th Cir. 2008). When a district court declines to give a requested
instruction for which there was a sufficient evidentiary basis, we will reverse “only
if (1) the requested instruction correctly stated the law; (2) the actual charge to the
jury did not substantially cover the proposed instruction; and (3) the failure to give
the instruction substantially impaired the defendant’s ability to present an effective
defense.” Id. (internal quotation marks omitted). In determining whether an
instruction substantially covered the proposed instruction, we “need only ascertain
whether the charge, when viewed as a whole, fairly and correctly states the issues
and the law.” United States v. Gonzalez, 975 F.2d 1514, 1517 (11th Cir. 1992).
The district court did not abuse its discretion by declining to give King’s
requested jury instruction. King specifically requested the district court instruct
the jury as follows:
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You may also consider whether an identifying witness is not of the
same race as the Defendant and whether that fact might have had an
impact on the accuracy of the witness’s original perception, and/or the
accuracy of the subsequent identification. You should consider that,
in ordinary human experience, people may have greater difficulty in
accurately identifying members of a different race.
However, no evidence was adduced at trial related to this point. While King
presented evidence about other factors that might be relevant to the ability of a
witness to make a reliable identification, such as the witness’s anxiety and
opportunity to view the suspect, see Perry v. New Hampshire, 132 S. Ct. 716, 727
(2012), King did not present any evidence regarding the effect of race on the
ability of a witness to make an accurate identification, nor did he cross-examine
any of the witnesses to determine whether they had difficulty making cross-racial
identifications. Accordingly, King failed to adduce a sufficient evidentiary basis
for the requested instruction, and the district court did not abuse its discretion in
declining to give it.
Even if King had presented sufficient evidence to warrant the requested
instruction, we would not reverse on this record because the charge the district
court actually gave substantially covered the proposed instruction and the failure to
give the instruction did not substantially impair King’s ability to present an
effective mistaken-identification defense. The district court instructed the jurors as
follows:
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The Government must prove beyond a reasonable doubt that the
defendant was the person who committed the crime. If a witness
identifies a defendant as the person who committed the crime, you
must decide whether the witness is telling the truth. But even if you
believe the witness is telling the truth, you must still decide how
accurate the identification is.
I suggest that you ask yourself these questions among others:
Did the witness have an adequate opportunity to observe the person at
the time that the crime was committed? How much time did the
witness have to observe the person? How close was the witness? Did
anything affect the witness’ ability to see? Did the witness know or
see the person at an earlier time?
You may also consider the circumstances of the identification of the
defendant such as the way the defendant was presented to the witness
for identification and the length of time between the crime and the
identification of the defendant.
After examining all the evidence, if you have a reasonable doubt that
the defendant was the person who committed the crime, you must find
the defendant not guilty.
This instruction, viewed as a whole, fairly and correctly stated the issues and
the law. See Gonzalez, 975 F.2d at 1517. The instruction was sufficiently
comprehensive to assist the jury in evaluating the witnesses’ identification
testimony, highlighted potential questions for the jurors while also suggesting that
those questions were not the only factors they should consider, informed the jurors
that they should assess the reliability of the identifications even if they believed the
witnesses were telling the truth, suggested they should consider the identification
procedure, and informed the jurors that if they had a reasonable doubt regarding
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the identity of the defendant as the robber, they should find him not guilty.
Accordingly, the district court committed no reversible error in using the pattern
jury instruction on identification rather than the requested instruction in this case.4
C. Photographic Lineup
King next argues that the photographic lineup from which Nickelson Charles
identified him was unduly suggestive because King was the only individual shown
wearing a white tank top, which was the same color and type of shirt worn by the
robber of the My Dream Coin Laundry. King maintains a different photograph of
him could have been used, or the pictures could have been presented such that only
the individuals’ faces could be seen.
It is well established that due process restrains the admission of eyewitness
identifications at trial “when the police have arranged suggestive circumstances
leading the witness to identify a particular person as the perpetrator of a crime.”
United States v. Elliot, 732 F.3d 1307, 1309-10 (11th Cir. 2013) (internal quotation
marks omitted); see also Perry, 132 S. Ct. at 720. However, “[a]n identification
infected by improper police influence . . . is not automatically excluded.” Perry,
132 S. Ct. at 720. Instead, an identification must be excluded only if the
4
We do not suggest that instructions regarding cross-racial identifications are never
warranted. See United States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997) (stating that
defendants may “request jury instructions that highlight particular problems in eyewitness
recollection” and suggesting that cross-racial identification may be such a problem). We also do
not suggest that such instructions must always be given. We have no occasion to consider the
propriety of such instructions in general because we hold only that, on this record, the district
court did not abuse its discretion in failing to give the requested instruction.
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identification procedure created “a very substantial likelihood of irreparable
misidentification” and the identification did not contain sufficient indicia of
reliability. Id. (internal quotation marks omitted). Thus, this Court engages in a
two-step analysis in assessing a district court’s decision to admit an out-of-court
identification, asking first whether the original identification procedure was unduly
suggestive and, second, whether, under the totality of the circumstances, the
identification was nonetheless reliable. United States v. Diaz, 248 F.3d 1065, 1102
(11th Cir. 2001).
In his initial brief, King argues only that the photographic lineup from which
Charles identified him as the robber of the My Dream Coin Laundry was unduly
suggestive. The district court denied King’s motion to suppress the identification,
however, because the procedure was not unduly suggestive and because the
identification was reliable. To warrant exclusion of the evidence, King had to
convince us that both of the district court’s findings were incorrect, but King does
not elaborate any argument on appeal regarding the reliability of Charles’s
identification. He has therefore abandoned an issue on which he had to prevail in
order to obtain reversal. See Perry, 132 S. Ct. at 720. We have explained that
“[w]hen an appellant fails to challenge properly on appeal one of the grounds on
which the district court based its judgment, he is deemed to have abandoned any
challenge of that ground, and it follows that the judgment is due to be affirmed.”
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Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
Furthermore, although King argues in passing in his brief that “given the dearth of
other evidence against him and the limited time the victims viewed the robbers the
conviction based on that tainted identification should be reversed,” his terse
statement did not sufficiently raise the reliability issue so as to save it from
abandonment. See id. at 681 (“We have long held that an appellant abandons a
claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”). Accordingly,
we do not address King’s arguments regarding the purported suggestiveness of the
photographic lineup because doing so is unnecessary, and we affirm the district
court’s decision to admit the evidence.
D. Cumulative Error
King next contends that even if none of the alleged errors he has asserted
warrant reversal of his convictions, the cumulative effect of those errors deprived
him of a fair trial. Under the cumulative error doctrine, “an aggregation of
non-reversible errors . . . can yield a denial of the constitutional right to a fair trial,
which calls for reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir.
2005). However, “where there is no error or only a single error, there can be no
cumulative error.” United States v. House, 684 F.3d 1173, 1210 (11th Cir. 2012).
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Because King has not identified any errors, there can be no cumulative error and
we therefore affirm his convictions.
E. Sentences on the Firearm Convictions
Relying on the Supreme Court’s recent decision in Alleyne v. United States,
133 S. Ct. 2151 (2013), King argues the district court erred by imposing a
seven-year mandatory minimum sentence for brandishing a firearm during a crime
of violence because “brandishing” is an element of the offense that had to be
proved to the jury beyond a reasonable doubt. He contends that because the
element of brandishing was neither charged in the indictment nor found by the jury
beyond a reasonable doubt, his § 924(c) convictions must be vacated and his case
remanded for resentencing.
King further maintains that his mandatory consecutive 25-year sentences on
Counts Five, Seven, and Nine should be reversed because the jury did not find
those convictions were “second or subsequent.” He asserts that the second or
subsequent nature of the convictions is an element of the offense under Alleyne
such that it must be charged in the indictment and found by the jury beyond a
reasonable doubt.
1. Brandishing a Firearm
We begin our analysis of King’s Alleyne argument with a brief
discussion of the standard of review applicable to such claims. We have
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previously held that preserved claims of error under Apprendi are reviewed de
novo because the applicability of Apprendi to a specific case is a pure question of
law. See United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001);
United States v. Rogers, 228 F.3d 1318, 1321 (11th Cir. 2000), abrogated on other
grounds by United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc). In
Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490, 120 S. Ct. at 2362-63. Subsequently, the Supreme Court held in
Harris v. United States, 536 U.S. 545, 568, 122 S. Ct. 2406, 2420 (2002),
overruled by Alleyne, 133 S. Ct. at 2163, that the rule announced in Apprendi did
not apply to facts that increase a defendant’s mandatory minimum sentence. While
King’s case was pending on appeal with this Court, however, the Supreme Court
overruled Harris, holding in Alleyne that the “distinction between facts that
increase the statutory maximum and facts that increase only the mandatory
minimum” was inconsistent with Apprendi. Alleyne, 133 S. Ct. at 2155, 2163.
Instead, the Court held that “any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.” Id. at 2155. The Supreme Court
specifically concluded a finding that a firearm was brandished during a crime of
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violence is an element of an 18 U.S.C. § 924(c)(1)(A)(ii) 5 offense that must be
found by a jury beyond a reasonable doubt. Id. at 2163.
Because the Supreme Court in Alleyne simply extended Apprendi to facts
that increase a defendant’s mandatory minimum sentence, see Alleyne, 133 S. Ct.
at 2160, we hold that preserved claims of Alleyne error, like preserved claims of
Apprendi error, are reviewed de novo. King adequately preserved his objection to
receiving an enhanced mandatory minimum sentence under § 924(c)(1)(A)(ii) by
arguing that, under Apprendi and the Sixth Amendment, the jury had to find
beyond a reasonable doubt that he brandished a firearm. See United States v.
McKinley, 732 F.3d 1291, 1295 & n.2 (11th Cir. 2013).
We further hold that Alleyne violations are subject to harmless error review.
We have consistently held that Apprendi violations are subject to harmless error
analysis. See United States v. Allen, 302 F.3d 1260, 1276 (11th Cir. 2002) (“This
circuit has recognized repeatedly that where an Apprendi violation exists . . . a
reviewing court must engage in a harmless error analysis.”). We have explained
that “Apprendi did not recognize or create a structural error that would require per
se reversal,” United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000), and that
5
Section 924(c)(1)(A) enumerates the mandatory minimum sentences for any person
who uses or carries a firearm during or in relation to a crime of violence, or who possesses a
firearm in furtherance of a crime of violence. The statute provides a five-year mandatory
minimum sentence for any person who uses, carries, or possesses a firearm, 18 U.S.C.
§ 924(c)(1)(A)(i), but imposes a seven-year mandatory minimum sentence for anyone who
brandishes a firearm during the commission of the crime, id. § 924(c)(1)(A)(ii).
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“Apprendi errors do not fall within the limited class of fundamental constitutional
errors that defy analysis by harmless error standards,” Candelario, 240 F.3d
at 1307 (internal quotation marks omitted). We have also repeatedly held that
extensions of Apprendi, such as those recognized in Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005), are subject to harmless error review. See, e.g., United States v.
Dulcio, 441 F.3d 1269, 1277 (11th Cir. 2006) (“Because [the defendant] preserved
his Blakely/Booker claim at sentencing, we review for harmless error.”); United
States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (explaining we will disregard a
Booker error if it was harmless). Because we review errors under Apprendi and its
progeny for harmless error, and Alleyne is simply the newest member of that same
family, we readily conclude that Alleyne errors (i.e., errors that increase the
statutory mandatory minimum) are subject to harmless error review.
The Government concedes the district court erred under Alleyne by imposing
a seven-year sentence for King’s firearm conviction in Count Three. Accepting
that concession, we nevertheless conclude that reversal is not warranted because
the error was harmless. See Nealy, 232 F.3d at 829 (“[A] constitutional error is
harmless if it is clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.” (internal quotation marks omitted));
see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). At
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trial, the Government presented extensive evidence that King brandished a firearm
during the My Dream Coin Laundry robbery. Charles testified that King pointed a
gun at his face and demanded the money from the laundromat’s cash register.
Charles further testified that after King again demanded Charles turn over the
money, King threatened to shoot him. The Government also introduced into
evidence a surveillance video of the robbery. In the video, after Charles walks
behind the counter in the laundromat, King lunges forward and thrusts a gun in
Charles’s face. King keeps the gun aimed at Charles while taking money from the
counter, and then waives it at Charles as King and Kelly run from the store.
Additionally, the Government presented still photographs of the robbery taken
from the surveillance video. In one of the photographs, King is depicted holding a
gun in one hand with his other hand bracing the firearm from underneath. The gun
is pointed directly at Charles, who is located behind the counter. On these facts, it
is clear beyond a reasonable doubt that a rational jury would have found King
guilty of brandishing a firearm absent the Alleyne error. See Nealy, 232 F.3d at
829; see also 18 U.S.C. § 924(c)(4) (defining the term “brandish” as “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”). Accordingly, we affirm King’s seven-year
sentence for brandishing a firearm during the commission of a violent crime.
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2. Second or Subsequent Convictions
King next argues that the rationale of Alleyne required the indictment to
charge and a jury to find beyond a reasonable doubt that the § 924(c) firearms
offenses charged in Counts Five, Seven, and Nine were “second or subsequent.”
King raises this argument for the first time on appeal, and we therefore review it
only for plain error. See McKinley, 732 F.3d at 1296. Under the plain error
standard, we will reverse only if there is error that is plain, that affected the
defendant’s substantial rights, and only if the error seriously affects the fairness
integrity, or public reputation of judicial proceedings. Id. King has not met that
standard.
18 U.S.C. § 924(c)(1)(C)(i) provides that “[i]n the case of a second or
subsequent conviction under this subsection, the person shall . . . be sentenced to a
term of imprisonment of not less than 25 years.” Section 924(c)(1)(D)(ii) requires
that such sentences must run consecutively to any other term of imprisonment. 18
U.S.C. § 924(c)(1)(D)(ii). King’s argument that a jury must find his convictions
were “second or subsequent” runs afoul of the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998). “In
[Almendarez-Torres], the Supreme Court held that the [G]overnment need not
allege in its indictment and need not prove beyond a reasonable doubt that a
defendant had prior convictions for a district court to use those convictions for
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purposes of enhancing a sentence.” United States v. Shelton, 400 F.3d 1325, 1329
(11th Cir. 2005) (internal quotation marks omitted). We have explained that the
Supreme Court’s holding in Almendarez-Torres “was left undisturbed by
Apprendi, Blakely, and Booker,” id., and have repeatedly refused to depart from it
until the Court itself overrules the case, see, e.g., United States v. Gandy, 710 F.3d
1234, 1237 n.3 (11th Cir. 2013); United States v. Thomas, 242 F.3d 1028, 1035
(11th Cir. 2001) (“[W]e are bound to follow Almendarez-Torres unless and until
the Supreme Court itself overrules that decision.”). Finding that a defendant’s
convictions were “second or subsequent” is the same as finding that a defendant
had a prior conviction, and the issue remains governed by Almendarez-Torres. See
United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013) (concluding that
Almendarez-Torres remains binding authority notwithstanding Alleyne and that a
jury need not find a defendant’s convictions were second or subsequent under
§ 924(c)(1)(C)(i)).
King’s argument that the holding of Almendarez-Torres is inconsistent with
the logic of Alleyne is also unavailing. The Supreme Court itself explicitly
declined to revisit Almendarez-Torres in Alleyne, 133 S. Ct. at 2160 n.1, and we
recently rejected this same argument in United States v. Harris, 741 F.3d 1245,
1250 (11th Cir. 2014). In Harris, we recognized “that there is some tension
between Almendarez-Torres on the one hand and Alleyne and Apprendi on the
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other,” but concluded “we are not free to do what the Supreme Court declined to
do in Alleyne, which is overrule Almendarez-Torres.” Id. Thus, the district court
did not plainly err by imposing consecutive 25-year sentences for King’s second or
subsequent § 924(c) offenses.
F. Reasonableness of King’s Sentence
King contends his 1,062-month sentence is unreasonable because the nature
of his offenses did not warrant such a severe sentence, and his co-conspirator,
Kelly, received only 384 months’ imprisonment which created a sentencing
disparity. King emphasizes that while his offenses were serious, no victims were
harmed, and he asserts the district court failed to consider his personal
characteristics.
We review the reasonableness of a defendant’s sentence under a deferential
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591 (2007). When reviewing the reasonableness of a sentence, we first ensure
“that the district court committed no significant procedural error” and then
“consider the substantive reasonableness of the sentence imposed” under the
totality of the circumstances. Id. at 51, 128 S. Ct. at 597. In evaluating the
reasonableness of a sentence, we measure the sentence against the factors outlined
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in 18 U.S.C. § 3553(a). 6 United States v. Pugh, 515 F.3d 1179, 1188 (11th Cir.
2008). Under our highly deferential review, we will vacate a sentence only if “we
are left with the definite and firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal
quotation marks omitted).
The district court did not abuse its discretion when imposing King’s
sentence. At sentencing, the district court observed that King failed to accept
responsibility for his violent offenses, failed to show any remorse, and would
likely be a recidivist if released from incarceration. The district court explicitly
pointed to the nature and circumstances of the offenses, discussed the need to
protect the public from King’s future criminal conduct, and referenced King’s
personal characteristics. Although the district court did not expressly discuss
King’s history of mental illness and drug abuse, we have consistently held that the
6
Section 3553(a) provides that the district court should impose a sentence that is
“sufficient, but not greater than necessary, to comply with the purposes” listed in § 3553(a)(2),
including the need to reflect the seriousness of the offense, promote respect for the law, provide
just punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular
sentence, the court must also consider the nature and circumstances of the offense, the history
and characteristics of the defendant, the kinds of sentences available, the applicable guideline
range, the pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims. Id.§ 3553(a)(1), (3)-(7).
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district court is not required to state it has considered each of the § 3553(a) factors
or to discuss each of the factors on the record. United States v. Kuhlman, 711 F.3d
1321, 1326 (11th Cir. 2013) (“[N]othing requires the district court to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss
each of the §3553(a) factors.” (internal quotation marks and ellipsis omitted)).
The district court also did not create an unwarranted sentencing disparity by
sentencing King to a 1,062-month term of imprisonment while his co-conspirator,
Kelly, received only a 384-month sentence. King was not similarly situated to
Kelly because Kelly pled guilty to only a few counts while King went to trial and
was convicted of 9 counts, including numerous § 924(c) offenses that carried
mandatory consecutive sentences of at least 25 years’ imprisonment. See United
States v. Jayyousi, 657 F.3d 1085, 1118 (11th Cir. 2011) (stating that, on remand,
the district court should avoid comparisons between, inter alia, defendants who
went to trial and those who pled guilty); see also United States v. Docampo, 573
F.3d 1091, 1101 (11th Cir. 2009) (“[D]efendants who cooperate with the
government and enter a written plea agreement are not similarly situated to a
defendant who provides no assistance to the government and proceeds to trial.
There is no unwarranted disparity even when the sentence the cooperating
defendant receives is substantially shorter.” (citation and internal quotation marks
omitted)).
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The district court did not commit a clear error of judgment in weighing the
§ 3553(a) factors, and it imposed a sentence within the range of reasonable
sentences dictated by the facts of the case. Accordingly, we affirm King’s
sentences.
III. CONCLUSION
For the foregoing reasons, we affirm King’s convictions and sentences.
AFFIRMED.
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