United States v. King: Alleyne Requires that "Brandishing" a Firearm Must Be Alleged in the Indictment, but Panel Nonetheless Upholds 1,062 Month Sentence Because Harmless Error Analysis Applies

United States v. King, No. 12-16268, from SDFla

Per curiam opinion joined by Circuit Judge Hull, Senior Circuit Judge Black, and Senior Circuit Judge Farris (9^th Cir.)

Summary:  The defendant appealed his convictions for conspiracy to interfere with interstate commerce and interfering with interstate commerce via armed robbery in violation of 18 U.S.C. § 1951(a).  He also appealed his convictions for using or carrying a firearm in violation of 18 U.S.C. § 924(c)(1)(A).  He was sentenced to 1,062 months of imprisonment.

First, the defendant argued that there was no evidence that the gun he used met the definition of a firearm under 18 U.S.C. § 921(a)(3) and that his conviction under 18 U.S.C. § 924 should accordingly be reversed.  Based on United States v. Woodruff, 296 F.3d 1041, 1049 (11th Cir. 2002), the panel rejected this argument, as Woodruff held that the government need not prove to a scientific certainty that a defendant is carrying a device that fires projectiles by means of an explosive.  The government  has no burden to offer the gun itself into evidence or to produce an expert witness, but must simply introduce sufficient testimony, which includes lay witness testimony, to prove beyond a reasonable doubt that the defendant used or carried a firearm.  Here, the testimony of victims that the firearm that the defendant used was in fact a firearm was sufficient. 

Second, the defendant argued that the district court erred by refusing to give a jury instruction regarding the unreliability of cross-race identifications, i.e. that persons who are not African Americans could not accurately identify an African American in a photo lineup.  The panel rejected this argument because there was no evidence adduced at trial to support this assertion.  The panel further held that the court’s instruction, which did not mention race ,but which explained that the jury must determine whether an identification was accurate, was sufficient.

Third, the defendant asserted that the photographic lineup used to identify him was unduly suggestive because he was the only person wearing a white tank top, which was the same type of shirt worn by the alleged robber.  An identification may be excluded only if the identification procedure created a very substantial likelihood of irreparable misidentification and the identification did not contain sufficient indicia of reliability.  The Eleventh Circuit applies a two-part test to this evaluation: (1) was the original identification procedure unduly suggestive; and 2) was the identification nonetheless reliable under the totality of the circumstances.  The panel rejected and did not address this argument because the defendant failed to argue that the identification was not reliable, even though he contended that the procedure was unduly suggestive.

Fourth, the defendant argued that cumulative errors by the trial court warranted reversal of his convictions because he was deprived of a fair trial.  The panel made short work of this challenge, finding that the defendant had failed to identify any errors.

Fifth, and lastly, the defendant challenged his sentence.  The most important challenge invoked Alleyne v. United States, 133 S. Ct. 2151 (2013), and asserted that the district court erred by imposing a seven-year mandatory minimum sentence for brandishing a firearm during a crime of violence because “brandishing” was an element of the offense that had to be proved to the jury beyond a reasonable doubt.  Since this element was not charged in the indictment or found by the jury, he argued that his convictions under § 924(c) needed to be vacated. 

In Apprendi the Supreme Court held that other 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.  Next, Harris held that the Apprendi rule did not apply to facts that increase a defendant’s mandatory minimum sentence.  Harris was recently overruled by Alleyne which found that the distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum was inconsistent with Apprendi.  Thus, Alleyne holds that any fact that increases the mandatory minimum is an element of a crime that must be submitted to a jury.  Since brandishing a firearm during a crime of violence is an element of an 18 U.S.C. § 924(c)(1)(A)(ii) offense, the panel agreed with the defendant that the fact of brandishing must be proved beyond a reasonable doubt.

 

The panel nonetheless rejected the defendant’s argument.  It found that even preserved claims of Alleyne violations are subject to harmless error review (like Apprendi violations).  Thus, even though the government conceded error, the panel found that the error was harmless because it was clear beyond a reasonable doubt that a rational jury would have found the defendant guilty of brandishing the firearm absent the error.

The defendant also argued that his § 924(c)(1)(C)(i) convictions for a second or subsequent conviction under § 924(c) needed to also be found by a jury.  The panel rejected this argument by relying on Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that the government does not need to allege in the indictment or prove beyond a reasonable doubt that a defendant had prior convictions for a district court to use those convictions for purposes of enhancing a sentence. 

The panel then rejected a reasonableness challenge to the defendant’s sentence.

Accordingly, the defendant’s conviction and sentence were affirmed.