United States v. Daniel McKinley

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14655
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60038-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL MCKINLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 15, 2013)
Before TJOFLAT, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Daniel McKinley appeals his 209-month total sentence imposed by the
district court after a jury convicted him of interference with commerce by violence,
in violation of 18 U.S.C. § 1951(a) (Count 1); and using and carrying a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A) (Count 2). McKinley maintains the district court erred by
(1) violating his Sixth Amendment rights by imposing a seven-year mandatory
minimum sentence on Count 2 based on the judicially-found fact that he
brandished a firearm; (2) assessing him a two-level enhancement under U.S.S.G.
§ 3C1.1 for obstruction of justice; and (3) imposing an above-guidelines sentence
as to Count 1. After a thorough review of the record and consideration of the
parties’ briefs, we affirm.
I. BACKGROUND
On September 23, 2011, a man wearing a black mask and carrying a gun
entered the convenience store at a Chevron gas station in Lauderdale Lakes,
Florida. Mohammad Khan, the manager and part-owner of the station who was
working that day, immediately tried to close himself in the store’s cashier’s booth
using a bulletproof door. The robber, however, prevented the door from closing
with his left hand. Using his right hand, the robber pointed his gun at Khan and
ordered him to open the door. After Khan obeyed, the robber emptied two cash
registers and exited the booth. Khan then succeeded in locking himself inside the
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booth, but, in the process, also locked the robber inside the store. Unable to leave,
the robber pointed his gun at Khan and screamed at him to open the door. Khan
unlocked the door using a button beneath the cash register, and the robber kicked
the door open and exited.
While Khan was waiting for the police to arrive, he noticed several blood
stains inside the store. Once the police arrived, an officer collected blood samples
from around the exit door, the door inside the cashier’s booth, and the floor inside
the cashier’s booth. The officer also collected a fingerprint from the door inside
the cashier’s booth.
A federal grand jury subsequently returned a two-count indictment charging
McKinley with interfering with commerce by threats or violence and using or
carrying a firearm during and in relation to a crime of violence. In relevant part,
Count 2 specifically charged that McKinley “did knowingly use and carry a
firearm during and in relation to a crime of violence, and did knowingly possess a
firearm in furtherance of a crime of violence . . . .” However, the indictment cited
18 U.S.C. § 924(c)(1)(A)(ii), the statutory provision that prescribes a seven-year
mandatory minimum sentence for brandishing a firearm during and in relation to a
crime of violence.
At trial, the Government presented evidence that McKinley’s fingerprints
positively matched the fingerprint taken from the door in the cashier’s booth, and
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his DNA matched that in the blood samples obtained from the crime scene. While
testifying in his own defense, McKinley explained he was a regular visitor at
Khan’s Chevron station, but repeatedly denied robbing the gas station. He also
denied that his blood was present in the convenience store, and maintained the
Government’s DNA analysis was inaccurate. McKinley similarly denied his
fingerprint was found inside the cashier’s booth. The jury convicted McKinley on
both counts. The verdict form provided that the jury found McKinley guilty as to
Counts 1 and 2 “as charged in the Indictment.” The form, however, did not
include any specific findings of fact.
In preparing McKinley’s presentence investigation report (PSI), the
probation officer assigned him a base-offense level of 20, pursuant to U.S.S.G.
§ 2B3.1(a). McKinley received an additional two points under § 2B3.1(b)(2)(F)
because the crime involved threats of death, as well as a two-level enhancement
under § 3C1.1 for obstruction of justice, yielding a total adjusted offense level of
24. Based on a 1990 state conviction for grand theft, McKinley was assessed three
criminal history points resulting in a criminal history category of II. The PSI also
enumerated McKinley’s numerous other state convictions for offenses dating from
1972 through 1999—including robbery, grand theft, burglary, drug offenses, and
resisting an officer without violence—but those offenses did not figure into his
criminal history score because of their age. Given a total adjusted offense level of
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24 and a criminal history category of II, McKinley’s guidelines range for Count 1
was 57 to 71 months’ imprisonment, with a statutory maximum of 20 years’
imprisonment. The PSI further noted that McKinley brandished a firearm during
the robbery, so his guidelines range for Count 2 was the statutory minimum
sentence of seven years’ imprisonment enumerated in 18 U.S.C. § 924(c)(1)(A)(ii)
which was to run consecutive to his sentence for Count 1.
Prior to sentencing, the district court issued a Federal Rule of Criminal
Procedure 32(h) notice that it was contemplating departing upward from
McKinley’s advisory guidelines range pursuant to U.S.S.G. § 4A1.3, or varying
upward pursuant to 18 U.S.C. § 3553(a), because his criminal history category of II
substantially underrepresented the seriousness of his criminal history and the
likelihood he would commit future crimes.
At the sentencing hearing, the district court explained to McKinley that,
while the jury convicted him of using a firearm during a crime of violence, the
court was authorized to increase his mandatory minimum sentence if the court
found that he brandished the firearm during the commission of the robbery. The
district court clarified, “I can give you a five-year mandatory minimum
consecutive [sentence] if I think you just carried [the firearm] or used it. If I think
that you brandished it, then I can give you a seven-year mandatory minimum.”
Before imposing McKinley’s sentences, the court also stated:
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I think that Mr. McKinley has unscored stale convictions that the
Court can and should take into account . . . If you score all of those
convictions, had they not been stale, he would come up with, I think,
17 criminal history points, which is a category six criminal history. I
think that’s the appropriate way under the Guidelines to have scored
Mr. McKinley. So, under the Guideline rules, I depart upward to an
offense level 24, criminal history category six, for a range of a
hundred to . . .125 months.
The court further explained that, considered as an upward variance, an
above-guidelines sentence would be appropriate to protect the public, promote
respect for the law, and to deter others. Accordingly, the district court sentenced
McKinley to 125 months’ imprisonment as to Count 1, and a consecutive 84
months’ imprisonment as to Count 2, for a total of 209 months’ imprisonment.
This appeal followed.
II. DISCUSSION
A. Seven-Year Mandatory Minimum Sentence
McKinley argues for the first time on appeal that the district court
unconstitutionally increased his statutory mandatory minimum sentence as to
Count 2 based on a fact not found by the jury beyond a reasonable doubt.
Specifically, he maintains that, under the Sixth Amendment, the jury was required
to find he brandished a firearm rather than simply used or carried one in the
commission of his offense. 1 In response, the Government argues only that, at the
1
McKinley also argues the imposition of an enhanced sentence violated his Fifth
Amendment rights, by which we understand him to be attempting to raise a challenge to the
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time McKinley was sentenced, the Supreme Court’s decision in Harris v. United
States, 536 U.S. 545, 122 S. Ct. 2406 (2002), squarely foreclosed his argument.
While McKinley’s appeal was pending before this Court, the Supreme Court
decided Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), which explicitly
overruled Harris and held that any fact that increases a defendant’s mandatory
minimum sentence is an element of the offense that must be submitted to the jury
and proved beyond a reasonable doubt. It is by now well established that “[t]he
relevant time period for assessing whether an error is plain is at the time of
appellate consideration.” United States v. Bane, 720 F.3d 818, 830 (11th Cir. 2013)
(quotation omitted); see also Henderson v. United States, 133 S. Ct. 1121, 1130-31
(2013). As such, we must address the impact of Alleyne on McKinley’s seven-year
sentence for brandishing a firearm during and in relation to a crime of violence.
Alleyne affords McKinley minimal relief, however, because he failed to
preserve his argument that his Sixth Amendment rights were violated by the
district court’s imposition of an enhanced mandatory minimum sentence. See
United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998) (“The plain error rule
places a daunting obstacle before [the appellant].”). McKinley did not raise a
adequacy of his indictment. McKinley, however, did not elaborate any argument regarding the
indictment in his initial brief or cite any authority relevant to such an argument. Accordingly, we
deem any Fifth Amendment argument abandoned. See United States v. Curtis, 380 F.3d 1308,
1310 (11th Cir. 2004). Even if the issue is not abandoned, we note the indictment cited the
correct statutory provision, which was likely sufficient. See United States v. Nealy, 232 F.3d
825, 830 n.5 (11th Cir. 2000); United States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998).
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constitutional objection to his sentence before the district court. We have
explained that “not every objection is a constitutional objection,” and have held
that to preserve a claim of error under Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348 (2000), a defendant must raise an objection framed in constitutional
terms. See United States v. Candelario, 240 F.3d 1300, 1303-04 (11th Cir. 2001).
Thus, because Alleyne was an extension of Apprendi, see 133 S. Ct. at 2160, we
adopt the same rule and hold that to preserve a claim of Alleyne error, a defendant
must make a timely constitutional objection. 2 We further hold that, as with other
alleged constitutional errors, specifically errors of the Apprendi variety, the failure
to make a timely objection results in this Court’s application of plain error review.
See, e.g., United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir. 2005);
Fed. R. Crim. P. 52(b).
Under the plain error standard, “before an appellate court can correct an
error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781,
1785 (2002) (quotations and brackets omitted). If all three conditions are met, we
may then exercise our discretion to correct the error, “but only if (4) the error
2
A defendant may make such an objection by, for example, (1) invoking Alleyne or its
direct predecessors; (2) objecting that a fact relevant to an increased mandatory minimum should
be submitted to the jury; or (3) arguing that such a fact must be proved beyond a reasonable
doubt. See United States v. Munoz, 430 F.3d 1357, 1374 (11th Cir. 2005).
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seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation and brackets omitted).
In pertinent part, 18 U.S.C. § 924(c)(1)(A) provides a five-year mandatory
minimum sentence for any person who, during and in relation to a crime of
violence that may be prosecuted in federal court, uses or carries a firearm. 18
U.S.C. § 924(c)(1)(A)(i). However, if the defendant brandishes the firearm during
the commission of the crime, the mandatory minimum sentence is increased by two
years, to seven years’ imprisonment. Id. § 924(c)(1)(A)(ii). The statute defines
“brandish” to mean “with respect to a firearm, to display all or part of the firearm,
or otherwise make the presence of the firearm known to another person, in order to
intimidate that person, regardless of whether the firearm is directly visible to that
person.” Id. § 924(c)(4).
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 that a fact increasing a defendant’s mandatory minimum sentence,
specifically brandishing a firearm under § 924(c)(1)(A)(ii), was not subject to the
Apprendi rule and could be found by a sentencing judge rather than a jury. Harris,
536 U.S. at 556-57, 568-69, 122 S. Ct. at 2414, 2420. As noted, the Supreme
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Court overruled Harris in Alleyne, concluding that the “distinction between facts
that increase the statutory maximum and facts that increase only the mandatory
minimum” was inconsistent with Apprendi. 133 S. Ct. at 2155. Instead, the Court
held that “any fact that increases the mandatory minimum is an ‘element’ that must
be submitted to the jury.” Id.
In Alleyne, a jury convicted the defendant of, inter alia, robbery affecting
interstate commerce, and using or carrying a firearm in relation to a crime of
violence, in violation of § 924(c)(1)(A). Id. at 2155-56. As the Supreme Court
explained, “[t]he jury indicated on the verdict form that Alleyne had used or
carried a firearm during and in relation to a crime of violence, but did not indicate
a finding that the firearm was brandished.” Id. at 2156 (quotations and alterations
omitted). Over Alleyne’s objection, the district court imposed a seven-year
mandatory minimum sentence under § 924(c)(1)(A)(ii), and the Fourth Circuit
affirmed. Id.
In vacating the Fourth Circuit’s judgment and remanding for resentencing,
the Supreme Court held that, “[w]hile Harris limited Apprendi to facts increasing
the statutory maximum, the principle applied in Apprendi applies with equal force
to facts increasing the mandatory minimum.” Id. at 2160. The Court explained,
“[i]t is indisputable that a fact triggering a mandatory minimum alters the
prescribed range of sentences to which a criminal defendant is exposed.” Id.
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Thus, “because the legally prescribed range is the penalty affixed to the
crime, . . . it follows that a fact increasing either end of the range produces a new
penalty and constitutes an ingredient of the offense.” Id. (emphasis in original).
The Court reasoned that “the core crime and the fact triggering the mandatory
minimum sentence together constitute a new, aggravated crime, each element of
which must be submitted to the jury.” Id. at 2161. Because there was “no basis in
principle or logic to distinguish facts that raise the maximum from those that
increase the minimum,” the Supreme Court expressly overruled Harris as
inconsistent with Apprendi. Id. at 2163. The Court then held that the district
court’s finding by a preponderance of the evidence that Alleyne brandished a
firearm violated his Sixth Amendment rights, and remanded for resentencing
consistent with the jury’s verdict. Id. at 2163-64.
In this case, we will assume, arguendo, that McKinley demonstrated error
that is plain under Alleyne. We will also assume for the sake of argument that the
alleged error affected his substantial rights. Nevertheless, McKinley is not entitled
to correction of the alleged error because he has not satisfied the fourth prong of
plain error review. See Cotton, 535 U.S. at 631, 122 S. Ct. at 1785. The Supreme
Court has explained that where the evidence of a statutory element of an offense is
overwhelming and essentially uncontroverted, there is no basis for concluding the
error seriously affected the fairness, integrity, or public reputation of the judicial
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proceedings. Id. at 632-33, 122 S. Ct. at 1786. In the instant case, the evidence
that McKinley brandished a firearm was overwhelming. Khan testified that, after
the gas station robber prevented the bulletproof door on the cashier’s booth from
closing, the robber pointed his gun at Khan and ordered him to open the door.
Similarly, after Khan inadvertently locked the robber inside the store, the robber
again pointed his gun at Khan and screamed at him to open the exit door. Another
witness who observed the robbery from his parked car outside the store testified
that he saw the robber waiving a gun and shouting. See 18 U.S.C. § 924(c)(4)
(defining the term “brandish”).
Although McKinley repeatedly denied committing the robbery, and objected
to the PSI on that same basis, McKinley’s testimony was convincingly
controverted by DNA and fingerprint evidence establishing his presence inside the
cashier’s booth. In fact, his denial of any involvement in the offense was so
implausible as to amount to perjury, as discussed below. Accordingly, given such
evidence, there is no basis for us to conclude the alleged Alleyne error seriously
affected the fairness, integrity, or public reputation of judicial proceedings, and we
affirm McKinley’s 84-month sentence on Count 2.
B. Obstruction of Justice Enhancement
McKinley also argues that the district court erred by assessing him a
two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. He
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maintains that he did not provide materially false testimony and simply exercised
his constitutional right to proceed to trial.
The district court did not clearly err in imposing an enhancement for
obstruction of justice. See United States v. Jennings, 599 F.3d 1241, 1254 (11th
Cir. 2010). Section 3C1.1 provides for a two-level increase to a defendant’s base
offense level if “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1.
The commission of perjury under oath on material matters, not due to confusion,
mistake, or faulty memory, is grounds for an obstruction enhancement. United
States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116 (1993); United States v.
Williams, 627 F.3d 839, 845 (11th Cir. 2010); U.S.S.G. § 3C1.1, comment.
(n.4(B)).
The record fully supports the district court’s finding that McKinley perjured
himself because his testimony that he had no involvement in the robbery was
material to the issue of his guilt, see U.S.S.G. § 3C1.1, comment. (n.6), and was
expressly contradicted by DNA and fingerprint evidence from the scene of the
crime. Furthermore, while a defendant has a right to testify on his own behalf, the
Supreme Court has made it abundantly clear that “a defendant’s right to testify
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does not include a right to commit perjury.” Dunnigan, 507 U.S. at 96, 113 S. Ct.
at 1117.3
C. Upward Departure or Variance
McKinley further asserts the district court erred in imposing an
above-guidelines sentence on Count 1. The district court, however, did not abuse
its discretion in imposing McKinley’s above-guidelines sentence. See Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007) (“Regardless of whether
the sentence imposed is inside or outside the Guidelines range, the appellate court
must review the sentence under an abuse-of-discretion standard.”).
Under § 4A1.3, a district court may depart from the advisory sentencing
range “[i]f reliable information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes.” U.S.S.G.
§ 4A1.3(a)(1). The extent of the departure should be determined by reference to
the criminal history category “applicable to defendants whose criminal history or
likelihood to recidivate most closely resembles” that of the individual being
sentenced. Id. § 4A1.3(a)(4)(A).
3
Because we may affirm the district court on any ground supported by the record, United
States v. Hall, 714 F.3d 1270, 1271 (11th Cir. 2013), we need not consider the district court’s
alternative holding that the § 3C1.1 enhancement was also warranted because McKinley made
phone calls following his arrest purportedly instructing his daughter to destroy physical
evidence.
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On this record, we cannot say the district court abused its discretion in
departing upward based on McKinley’s extensive criminal history, as expressly
contemplated by § 4A1.3(a).4 McKinley had numerous prior convictions that were
not counted in computing his criminal history score. His offenses spanned most of
his adult life, ranging from the time he was 18 years’ old until he was at least 45
years’ old. With more than 25 years of criminal history encompassing crimes from
burglary and robbery to grand theft and reckless driving, we agree with the district
court that the assessment of only 3 criminal history points substantially
underrepresented McKinley’s criminal history and likelihood of recidivism.
In the alternative, McKinley’s 125-month sentence was appropriate as an
upward variance. As the district court found, the sentence was appropriate in order
to protect the public, to promote respect for the law, and to deter others. See 18
U.S.C. § 3553(a); United States v. Early, 686 F.3d 1219, 1222 (11th Cir. 2012).
We also note that McKinley’s sentence was well below the statutory maximum of
20 years’ imprisonment, which is a further indicator the sentence was reasonable.
See 18 U.S.C. § 1951(a); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008). Accordingly, we affirm McKinley’s 125-month sentence on Count 1.
4
McKinley does not argue the district court erred by failing to first explicitly consider
whether a criminal history category of III was appropriate, see United States v. Valdes, 500 F.3d
1291, 1292 n.1 (11th Cir. 2007), and the issue is therefore waived or abandoned, see Curtis, 380
F.3d at 1310 (explaining the “long-standing rule in this circuit, as well as in the federal rules
themselves, that issues not raised by a defendant in his initial brief on appeal are deemed
waived”).
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III. CONCLUSION
For the foregoing reasons, McKinley’s sentences are AFFIRMED.
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