United States v. Rodney Mack, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0262p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 12-5451

v.

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Defendant-Appellant. -

RODNEY B. MACK, JR.,

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Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 3:09-cr-00098-1—Thomas W. Phillips, District Judge.

Argued: August 1, 2013

Decided and Filed: September 6, 2013

Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

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COUNSEL

ARGUED: Jeffrey P. Nunnari, Toledo, Ohio, for Appellant. Kelly Ann Norris,

UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

ON BRIEF: Jeffrey P. Nunnari, Toledo, Ohio, for Appellant. Kelly Ann Norris,

UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

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OPINION

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JANE B. STRANCH, Circuit Judge. Rodney B. Mack, Jr., appeals his

conviction at jury trial on three counts of aiding and abetting carjacking, in violation of

18 U.S.C. §§ 2119 & 2; three counts of aiding and abetting robbery affecting interstate

commerce, in violation of 18 U.S.C. §§ 1951 & 2; and three counts of aiding and

abetting the use or carrying of a firearm in relation to a crime of violence, in violation

of 18 U.S.C. §§ 924(c) & 2. For the reasons explained below, we AFFIRM all counts

1

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of conviction. The defendant seeks reversal and remand for resentencing on all three

§ 924(c) convictions in light of the Supreme Court’s recent decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013), but because the Alleyne error was harmless, we AFFIRM

the sentences.

I. BACKGROUND

The defendant and his accomplice committed three similar carjackings and armed

robberies in Knoxville, Tennessee, on July 23, 28, and 30, 2009. On each occasion, one

of the men called in a food order to a pizza restaurant and requested delivery to a vacant

house where the two men waited. When the delivery driver arrived, the men robbed the

driver at gunpoint, taking the car, money, cell phone, food, and other property.

The first incident took place around noon on July 23. A delivery driver for

Domino’s Pizza, Mary Francis Miller, arrived at 422 Houston Street to find a vacant

house and two men sitting on the front porch. She left her car running in the driveway

and approached. The taller man walked toward the mailbox. The shorter one motioned

to the taller one and said, “Yo, do you have the money?” Miller turned toward the taller

man, but he did not say a word. When she turned around to again face the shorter

person, he pointed a heavy, black steel gun at her. She heard it make a “click-click”

noise. Although she was terrified, she did not run to her car because she was sure she

would be shot if she did.

The shorter robber ordered Miller to be quiet and follow him to the back of the

house. Believing he intended to kill her, she begged him not to shoot her. Once they

were behind the house, the robber ordered her to remove her fannypack and throw it to

the ground. While pointing the gun at her chest, he retrieved $60 in cash from the

fannypack. As he turned to leave, he told her to stay behind the house and remain silent.

Miller obeyed his instruction for about a minute before she walked to the front of the

house to find her car gone. Besides the car, the men stole Miller’s cell phone, as well

as other personal property belonging to Miller and Domino’s.

No. 12-5451 United States v. Mack Page 3

During the criminal investigation, Miller described her cell phone to the police

as a small, black, Cricket phone. Shortly after the robbery, she tried calling her cell

phone to pick up voicemail messages, but a young male answered the phone. Miller

described the shorter robber as a young, African American male with “bumpy” hair who

wore long, black, baggy, gym shorts, a baggy t-shirt, and white, high-top, Converse

tennis shoes. She was able to observe his face because he did not wear a disguise,

sunglasses, or a hat, and he stood close to her during the robbery. When shown a

photographic lineup by the police, Miller positively identified the defendant as the

shorter robber with one hundred percent certainty. She also identified the defendant in

the courtroom. Miller could not identify the taller robber.

Police later found Miller’s vehicle in the parking lot of Townview Towers

Apartments where the defendant lived in apartment D-209. Black shorts and a pair of

white tennis shoes were seized from the defendant’s apartment pursuant to a search

warrant, and at trial Miller identified the clothing as similar to that worn by the

defendant on the day of the robbery. An FBI agent seized a small, black, Cricket cell

phone from the defendant on the day of his arrest. At trial, Miller identified the cell

phone as the one stolen from her.

The second robbery and carjacking occurred on July 28, 2009, around 10:30 p.m.

A customer named “Smith” used Miller’s cell phone to call in a delivery order at Papa

John’s Pizza. The delivery driver, Crystal Walker, drove to the corner of Gleason Road

and Hayden Drive. Although the house appeared to be vacant, she left her car running

in the driveway and approached two young African-American men waiting near the

house. One man was taller than the other, and both were dressed in t-shirts and jeans.

Neither man wore anything to cover his face.

As Walker approached, the taller man was standing on the porch while the

shorter one was standing near the porch bannister talking on a small, black, cell phone.

The shorter man appeared to reach into his pocket for money. At that moment, the taller

person walked around behind Walker, grabbed her by the arm and pushed a black metal

handgun into her back. Although Walker was scared, she did not run for fear of being

No. 12-5451 United States v. Mack Page 4

shot or killed. The man holding the gun led her to the porch where both men demanded

her cell phone at least four to six times. Walker repeatedly told them that her phone was

in the car. The taller robber ordered Walker to lie face down on the porch and warned

that he would shoot her if she did not cooperate. The shorter robber also urged Walker

to cooperate. She eventually turned over $185 in cash. As the robbers ran to her car,

they instructed Walker to remain where she was or she would be shot. Walker did not

move as the men jumped into her car and drove away, stealing her property and Papa

John’s as well.

Police recovered Walker’s car within two hours after the robbery. When police

asked her to describe the robbers, Walker recalled that the shorter robber had braided

hair, but she could not define any characteristics of the taller robber. When shown a

photographic lineup, she identified two photographs which, if put together, would

resemble the shorter robber. She did not make an in-court identification of the

defendant.

The third robbery and carjacking occurred shortly after midnight on July 30,

2009. Domino’s delivery driver Ryan Johnson drove his car to 216 Suburban Road to

deliver pizzas. When he arrived, a man was pacing the sidewalk talking on a cell phone.

Because the house was dark, Johnson parked his car on the street, left it running, and

asked the man on the sidewalk for payment. The man replied that he did not have

enough money so he would get his friend to pay the rest. Johnson followed the man to

the porch, where a second, shorter man said, “Yeah, I have the money,” pulled out a

heavy, black, metal pistol, and pointed it at Johnson’s face. Johnson heard the man rack

the slide on the firearm, placing a bullet into the chamber. The shorter robber told

Johnson that he would be shot if he did not do as he was told, placing Johnson in fear for

his life.

Pointing the gun continuously at Johnson, the shorter robber said, “You know

what this is” and ordered Johnson to follow him onto the porch and lie face down on the

floor. He pressed the barrel of the gun into the nape of Johnson’s neck while the two

men emptied Johnson’s pockets and continuously asked for a cell phone. Each time

No. 12-5451 United States v. Mack Page 5

Johnson denied having a phone, the shorter robber pressed the gun more forcefully into

the base of Johnson’s skull. The robbers stripped Johnson of his eyeglasses and

clothing, then jumped into his car and drove away. Police found Johnson’s clothes lying

in the street about a block away from the robbery scene. Later the same night, police

recovered Johnson’s car at the Copper Pointe Apartments.

Johnson described both robbers as wearing dark clothing. The shorter robber had

spiky hair with short nubs and scruffy facial hair. When shown a photographic lineup

by the police, Johnson identified the defendant with one hundred percent certainty as the

shorter robber, but he could not identify the taller robber. At trial, Johnson again

identified the defendant and confirmed that a pair of black, Air Jordan tennis shoes taken

from the defendant’s apartment pursuant to the search warrant were similar to the shoes

worn by the shorter robber. Johnson also identified a cell phone, taken from the

defendant on the day of his arrest, as the one stolen from Johnson during the robbery and

carjacking. Cell phone records proved that Walker’s cell phone, which was stolen on

July 28, was used to call in the pizza order that Johnson tried to deliver on July 30.

The firearm used in these crimes was not recovered. Forensic analysts tried to

locate fingerprints or palm prints on the recovered items that might link a suspect to the

crimes, but those efforts were unsuccessful.

II. ANALYSIS

We must resolve six issues, including whether: (1) the district court erred in

admitting evidence under Federal Rule of Evidence 404(b); (2) the court should have

granted judgment of acquittal on the carjacking counts because the prosecution failed to

prove that the defendant had the “intent to cause death or serious bodily harm”; (3) the

court gave an improper jury instruction on the intent element of carjacking; (4) the court

gave an improper jury instruction on “proof beyond a reasonable doubt”; (5) the court

should have conducted a hearing on possible juror taint; and (6) resentencing is required

on the § 924(c) convictions in light of Alleyne v. United States, 133 S. Ct. 2151 (2013).

Finding no error warranting reversal, we affirm the convictions and sentences.

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A. Admission of Rule 404(b) evidence

The first issue we consider is whether the district court erred in admitting the

government’s evidence of a prior robbery that occurred in Georgia. “Evidence of a

crime, wrong, or other act is not admissible to prove a person’s character in order to

show that on a particular occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1). Such evidence “may be admissible for another purpose, such

as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

In deciding whether to admit evidence under Rule 404(b), the district court

applies a three-step analysis. United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012).

First, the court must find, based on sufficient evidence, that the other act in question

actually occurred. Id. The court next decides whether the evidence is probative of a

material issue other than character. Id. Finally, the court determines whether any unfair

prejudice generated by the other act evidence is substantially outweighed by its probative

value. Id.

When we review a decision to admit Rule 404(b) evidence, we apply a tripartite

standard of review. See id.; United States v. Geisen, 612 F.3d 471, 495 (6th Cir. 2010);

United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008); United States v. Baker, 458 F.3d

513, 517 (6th Cir. 2006); United States v. McDaniel, 398 F.3d 540, 544 (6th Cir. 2005).

We examine for clear error the district court’s factual determination that the other act

occurred. Clay, 667 F.3d at 693. We review de novo the district court’s legal

determination that the other act is admissible for a permissible purpose under Rule

404(b), and we review for an abuse of discretion the district court’s determination that

the probative value of the evidence substantially outweighed the danger of any unfair

prejudice. See id.

At the trial in this case, the district court allowed the jury to hear evidence about

a robbery that two men committed in Georgia approximately seventeen months before

the carjackings and robberies on trial. This evidence was presented to the jury through

the testimony of an FBI Agent who read from a certified transcript of a guilty plea

No. 12-5451 United States v. Mack Page 7

hearing in the Georgia state case. Although the defendant in that case, Rodney Bernard

Mack, Jr., was initially charged with a serious robbery offense, he entered a guilty plea

to a reduced misdemeanor charge of disorderly conduct. According to the state

prosecutor’s factual basis statement presented to support the guilty plea, the robbery

victim was approached by the defendant and his accomplice on a public sidewalk. The

victim took special note of the shorter of the two men because he had short twists in his

hair and he was dressed in blue jean shorts and a white tank top. The taller man, who

wore a black jacket, told the victim he had a Glock in his pocket and demanded the

victim’s property. The victim immediately turned over his food and his cell phone. The

victim later pointed Mack out to the police as one of the two people who robbed him,

and Mack was taken into custody.

The government offered this evidence under Rule 404(b) for the purpose of

proving identity. The court admitted the evidence for that purpose, instructing the jury

twice of its limited utility in deciding the case. On appeal, the defendant challenges the

admission of the evidence as propensity evidence that was unfairly prejudicial to him.

Although the question presented is a close one, we ultimately conclude that the evidence

should not have been admitted.

The prosecution is not required to prove by a preponderance of the evidence that

a prior bad act occurred, but it may not present similar acts “connected to the defendant

only by unsubstantiated innuendo.” Huddleston v. United States, 485 U.S. 681, 689

(1988). At the time the district court decided to admit this other-act evidence, the

government had not confirmed on the record that the Rodney Bernard Mack, Jr. who

pled guilty in Georgia state court was the same Rodney B. Mack, Jr., who was then on

trial. The court also did not make a factual finding that the Georgia crime actually

occurred. The FBI Agent read the facts of the incident from the certified transcript and

told the jury, without elaboration, that the caption on the transcript related to “the

defendant, Rodney Mack.” It was only when the defendant testified and admitted

pleading guilty in Georgia that the court and jury knew for certain that the same person

was involved in both incidents. If the Rule 404(b) evidence had been excluded from the

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government’s case, the defendant surely would not have addressed the Georgia case

during his trial testimony. The lack of the requisite factual finding that the prior act

occurred constitutes clear error. See Clay, 667 F.3d at 693.

The Georgia robbery also was not sufficiently probative of the defendant’s

identity to warrant admission. Prior bad act evidence is probative if it is sufficiently

similar to the charged crimes to establish the defendant’s pattern, modus operandi, or

“signature.” See id. at 699; United States v. Allen, 619 F.3d 518, 524 (6th Cir. 2010);

United States v. Perry, 438 F.3d 648, 648 (6th Cir. 2006); United States v. Hopper, 436

F. App’x 414, 420–21 (6th Cir. 2011). But the crimes need not “be identical in every

detail.” Perry, 438 F.3d at 648 (quoting United States v. Hamilton, 684 F.2d 380, 385

(6th Cir. 1982)).

The three Tennessee robberies were committed in a similar pattern or by use of

a similar modus operandi. But the Georgia charge arose from a typical street robbery

in which the victim fortuitously turned over a cell phone and food to the robbers. The

Georgia crime did not involve calling in food orders, luring delivery drivers to vacant

houses, stealing cell phones that were later used to set up future robberies, or carjacking.

Because the Georgia robbery lacked the pattern or modus operandi of the Tennessee

robberies, the jury essentially heard forbidden propensity evidence because the jurors

were required to pile “inference upon inference” to draw the conclusion that the

defendant was involved in all of the incidents. See Clay, 667 F.3d at 699.

We are unable to consider the district court’s reason for finding the Georgia

incident probative of identity because the court stated only: “I think it’s proper 404(b)

evidence.” Because the Rule 404(b) evidence was not sufficiently probative of identity,

it should not have been admitted, and because the admission was erroneous, we also

must necessarily conclude that the Rule 403 balancing of probative value against the risk

of unfair prejudice amounted to an abuse of discretion. See id. at 693.

Although the Rule 404(b) evidence should not have been admitted, reversal on

this basis is not warranted. “Any error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a). Error is “harmless

No. 12-5451 United States v. Mack Page 9

unless it is more probable than not that the error materially affected the verdict.” See

Clay, 667 F.3d at 700 (internal quotations and citations omitted). Stated another way,

admission of other-act evidence constitutes harmless error “if the record evidence of

guilt is overwhelming, eliminating any fair assurance that the conviction was

substantially swayed by the error.” Id. (quoting United States v. Hardy, 643 F.3d 143,

153 (6th Cir. 2011).

We think this standard is met here. Miller and Johnson both identified the

defendant with one hundred percent certainty as the shorter man who robbed them at

gunpoint. Miller’s stolen vehicle was found in the parking lot of the apartments where

the defendant lived. Clothing similar to that worn by the defendant during the

carjackings and robberies was found in his apartment during the execution of a search

warrant. On the day the defendant was arrested, he possessed the two cell phones stolen

from Miller and Johnson. Call records proved that Miller’s and Walker’s stolen cell

phones were used to place food delivery orders for subsequent robberies. By returning

guilty verdicts on all counts, the jury necessarily rejected the defendant’s testimony that

he was not involved in the carjackings and robberies. The strength of the trial evidence

eliminates any fair assurance that the conviction was substantially swayed by the

erroneous admission of the Rule 404(b) evidence. See Clay, 667 F.3d at 700.

Accordingly, we deny relief on this ground.

B. Evidence of “intent to cause death or serious bodily harm”

The defendant next argues that the district court should have granted his motion

for judgment of acquittal under Federal Rule of Criminal Procedure 29 because the

government failed to prove “brandishing-plus” to establish that he possessed “the intent

to cause death or serious bodily harm” as required by the carjacking statute, 18 U.S.C.

§ 2119. He acknowledges that United States v. Fekete, 535 F.3d 471 (6th Cir. 2008),

forecloses his argument, but he preserves the issue in the event the Supreme Court

should revisit Holloway v. United States, 526 U.S. 1 (1999).

In reviewing this issue, we consider whether, after taking the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found this

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essential element of carjacking beyond a reasonable doubt. See United States v.

Kennedy, 714 F.3d 951, 957 (6th Cir. 2013). The act of brandishing a firearm during a

carjacking, without more, is not sufficient to prove specific intent to kill or cause

seriously bodily harm to the victim. See Holloway, 526 U.S. at 11. The government

must produce evidence that the defendant did more than make an “empty threat” or

“intimidating bluff.” Id. “[I]f a defendant brandishes a firearm and (1) physically

touches the carjacking victim, or (2) there is direct proof that the firearm was loaded,

§ 2119’s specific intent element will be satisfied.” United States v. Washington, 714

F.3d 962, 968 (6th Cir. 2013). Even without physical touching or direct proof that the

firearm was loaded, the intent element can be satisfied through proof of “brandishing-

plus”: that is, “additional direct or circumstantial evidence . . . support[ing] a finding

that the defendant would have killed or seriously harmed the victim if the victim had

resisted.” Id. (quoting Fekete, 535 F.3d at 480). If the government produces evidence

of intent beyond brandishing, the jury looks to “the totality of the circumstances to

evaluate whether the defendant’s words and actions sufficiently demonstrated a

conditional intent to cause death or serious bodily harm.” Fekete, 535 F.3d at 481.

Although the firearm used in the carjackings and robberies was not recovered,

the government presented circumstantial evidence that the firearm was loaded during at

least two of the carjackings and robberies. Both Miller and Johnson heard the defendant

rack the slide on the weapon. FBI Agent Paul Hughes testified that a handgun will make

a clicking sound when the action is racked to place a bullet into the firing chamber.

While it is “conceivable” that a slide could rack without a bullet in the magazine, he

explained that the rack would slide to the rear and lock.

Miller testified that the defendant pointed the gun at her chest continuously

during the robbery. Pointing a gun at a person while demanding conformity with

particular action clearly implies a victim will be killed or injured if she refuses to

comply. See Fekete, 535 F.3d at 482. Although Miller acknowledged that the defendant

did not threaten to shoot her, it was the jury’s prerogative to decide under the totality of

the circumstances whether his words and actions sufficiently demonstrated a conditional

No. 12-5451 United States v. Mack Page 11

intent to cause death or serious bodily harm to Miller if she did not comply with his

demands. See id. at 481. The jury returned a verdict on count one finding the defendant

guilty of the carjacking of Miller.

The government also presented evidence that, during two of the robberies, the

firearm was brandished and the victims were physically touched. Walker described how

the taller man put the gun into her back as the two men forced her to lie face down on

the porch and turn over her property. Johnson recalled how the defendant forcibly

pushed the firearm into the back of his head repeatedly as the two men stripped him of

his property. Even if the defendant did not personally do these acts, he aided and abetted

the conduct of his accomplice. The witnesses’ testimony was sufficient to show that the

defendant possessed “the intent to cause death or serious bodily harm” to support

conviction on the carjacking counts. See Washington, 714 F.3d at 968.

Having reviewed the evidence in the light most favorable to the government in

considering the denial of the defendant’s Rule 29 motion, see United States v. Graham,

622 F.3d 445, 448 (6th Cir. 2010), cert. denied, 131 S. Ct. 2962 (2011), we conclude that

the defendant did not carry his heavy burden to show that the evidence was insufficient

to prove he possessed the intent to cause death or serious bodily harm. See United States

v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006). Consequently, we affirm the district

court’s denial of the defendant’s Rule 29 motion.

C. Jury instruction on intent to prove carjacking

The next issue concerns whether the district court adequately instructed the jury

on the element of intent required to prove carjacking. The lack of an objection below

means that we review the issue only for plain error. See United States v. Semrau,

693 F.3d 510, 527 (6th Cir. 2012). In this context, plain error occurred if we find that

the jury instructions taken as a whole were so erroneous as to likely produce a grave

miscarriage of justice. Id. at 528. Before finding plain error, we must determine that the

instructions, viewed as a whole, were confusing, misleading, or prejudicial, or the

district court’s error, if any, seriously affected the fairness, integrity, or public reputation

of the judicial proceedings. Id.

No. 12-5451 United States v. Mack Page 12

At trial, the district court instructed the jury that one element the government was

required to prove beyond a reasonable doubt was that “the defendant intended to cause

death or serious bodily harm at the time he took the motor vehicle.” The court

specifically instructed the jury that the government had to prove that the defendant “had

a real and present ability to inflict death or serious bodily harm” and that “the defendant

had the ability to carry out the threat.” The court then explained to the jury how to

consider any proof bearing on the defendant’s state of mind.

The elements instruction would have been more complete if it had elaborated on

Fekete’s brandishing-plus test in language the jury could understand. The instructions

as given and taken as a whole, however, were not so confusing, misleading, or

prejudicial as to cause a grave miscarriage of justice. See Semrau, 693 F.3d at 528. The

jury instructions sufficiently captured the pertinent legal concepts to pass plain error

review.

D. Jury instruction on reasonable doubt

Next, the defendant challenges the jury instruction on reasonable doubt. We also

review this issue for plain error because the defendant did not object below. See

Semrau, 693 F.3d at 527.

The district court read to the jury the entirety of Sixth Circuit Pattern Criminal

Jury Instruction 1.03. That instruction included a definition of reasonable doubt,

specifically informing the jury in part that “[p]roof beyond a reasonable doubt means

proof which is so convincing that you would not hesitate to rely and act on it in making

the most important decisions in your own lives.”

Citing Holland v. United States, 348 U.S. 121, 140 (1954), the defendant now

contends for the first time on appeal that the district court should not have used the

phrase, “willing to act.” This is a perplexing argument because “willing to act” did not

appear in the district court’s instruction. As the commentary to pattern jury instruction

1.03 confirms, the district court followed Holland and circuit precedent when the court

used “would not hesitate to rely and act on it” rather than “might be willing to act upon.”

No. 12-5451 United States v. Mack Page 13

See Holland, 348 U.S. at 140; United States v. Stewart, 306 F.3d 295, 306–07 (6th Cir.

2002). Because the reasonable doubt instruction was correctly worded, no plain error

occurred. See Semrau, 693 F.3d at 527.

E. Lack of a Remmer hearing

We turn to the defendant’s contentions that juror taint infected his trial and that

the district court improperly denied him a hearing under Remmer v. United States,

347 U.S. 227 (1954). On the last afternoon of trial, in the presence of the defendant and

his counsel, the prosecutor notified the court about an incident that occurred during the

lunch break. The prosecutor explained that FBI Agents Hughes and Morrow talked to

each other about the case while ordering food at a local restaurant. When they noticed

a juror sitting in the restaurant, they immediately stopped their conversation. The agents

did not speak to the juror, but they were not sure if the juror overheard the conversation.

The court investigated the matter by asking FBI Agent Hughes several questions

about the encounter. The court learned that the agents talked about the case while

standing at the lunch counter, the restaurant was not crowded or noisy, the juror was

seated eight to ten feet behind the agents, and when Agent Hughes spotted the juror out

of the corner of his eye and turned to look, the juror was reading a book. The agents

then stopped conversing.

After considering this information, the court decided not “to make an issue of it”

on the ground that further inquiry could unnecessarily highlight the matter in the eyes

of the jurors. The defense did not object or request a Remmer hearing. Accordingly, our

review is for plain error. See Fed. R. Crim. P. 52(b).

A defendant is entitled to a Remmer hearing to establish actual bias of a juror

“only when the alleged contact presents a likelihood of affecting the verdict.” United

States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997). “[N]o presumption of prejudice arises

merely from the fact that improper contact occurred.” United States v. Davis, 177 F.3d

552, 557 (6th Cir. 1999). Here, the district court discharged its duty to investigate and

decide whether there may have been a violation of the Sixth Amendment right to a fair

No. 12-5451 United States v. Mack Page 14

and impartial jury. See id. “[A] defendant who waits until appeal to request a hearing

bears a heavy burden, since the defendant has thereby effectively deprived this court of

any basis for concluding that a hearing would be necessary, and asks us to presume that

the district court would not have acceded to such a request, and would have done so for

erroneous reasons.” United States v. Walker, 160 F.3d 1078, 1083 (6th Cir. 1998).

Under the circumstances, no plain error exists that would justify reversal on this ground.

F. Section 924(c) sentencing in light of Alleyne

The final issue concerns sentencing on the defendant’s three convictions under

18 U.S.C. § 924(c). The district court found that the defendant brandished a firearm

during the first robbery and carjacking, as charged in count three, and imposed a 7-year

sentence on that count under § 924(c)(1)(A)(ii). Because the jury convicted the

defendant of two other § 924(c) offenses charged in counts nine and twelve, the court

found them to be second or subsequent convictions and imposed consecutive 25-year

sentences on those counts under § 924(c)(1)(C)(i).

In Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), the Supreme Court

held that any fact increasing the mandatory minimum sentence for a crime is an

“element” of that crime, not a sentencing factor, and therefore, the “element” must be

submitted to the jury for determination. Alleyne is factually on point with this case

because the Supreme Court held that the jury, not the district court, must make a finding

that a defendant brandished a firearm during and in relation to a crime of violence under

§ 924(c) before the court may impose the enhanced 7-year statutory mandatory minimum

sentence for brandishing instead of the 5-year statutory mandatory minimum sentence

for using or carrying a firearm. Id. at 2162–63. The analysis of Alleyne springs from

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), where the Court held the Sixth

Amendment requires any fact that increases the penalty for a crime beyond the

prescribed statutory maximum sentence, other than the fact of a prior conviction, must

be submitted to the jury and proved beyond a reasonable doubt.

The defendant did not raise a Sixth Amendment challenge in the district court,

and the Supreme Court decided Alleyne during the pendency of this appeal. Under the

No. 12-5451 United States v. Mack Page 15

circumstances, we apply plain error review. See Fed. R. Crim. P. 52(b); Johnson v.

United States, 520 U.S. 461, 466–67 (1997); United States v. Olano, 507 U.S. 725, 732

(1993). We may consider relief for an error not raised below only if we find (1) error,

(2) that is “plain,” and (3) that affects the substantial rights of the defendant. See

Johnson, 520 U.S. at 467. If these three conditions are met, then we may exercise our

discretion to notice the forfeited error, but only if we find the error seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. Id.

Under Alleyne, an error occurred below. The indictment charged the defendant

in counts three, nine, and twelve with using, carrying and brandishing a firearm. The

district court’s instruction to the jury on the elements of the § 924(c) charges spoke only

of using or carrying a firearm. When the court defined the phrase, “active employment”

of a firearm, the court included “brandishing” and “displaying” as conduct covered by

§ 924(c). The jury verdict form, however, did not require the jurors to make a specific

finding about whether the defendant brandished a firearm. At sentencing, the district

court made a finding that the defendant brandished a firearm. Alleyne permits only the

jury, not the district judge, to make a finding on brandishing. We must apply this new

rule to cases like this one pending on direct review. See Johnson, 520 U.S. at 467;

Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

To determine whether the second part of the Olano test is met, we need only

consider whether the error is “plain”—in other words, clear or obvious—at the present

time of our appellate review. Johnson, 520 U.S. at 467–68; United States v. Oliver,

397 F.3d 369, 379 (6th Cir. 2005). We conclude that the error is now clear or obvious.

The district court understandably followed Supreme Court precedent, in effect at the

time of sentencing, “that judicial factfinding . . . increas[ing] the mandatory minimum

sentence for a crime is permissible under the Sixth Amendment.” Alleyne, 133 S. Ct. at

2155 (citing Harris v. United States, 536 U.S. 545 (2002)). But the Supreme Court

overruled Harris in Alleyne, making it clear from our vantage point that the error below

was “plain.” See United States v. Yancy, __ F.3d __, 2013 WL 3985011, *2 (6th Cir.

Aug. 6, 2013) (applying plain error review and affirming imposition of 7-year sentence

No. 12-5451 United States v. Mack Page 16

under § 924(c) where defendant admitted at guilty-plea hearing that he brandished

firearm during carjacking).

With plain error apparent on the record, we next consider whether the

defendant’s substantial rights were affected. “This third step is akin to the harmless

error analysis employed in preserved error cases,” United States v. King, 272 F.3d 366,

378 (6th Cir. 2001) (internal quotation marks omitted), and requires us to ask “whether

it appears ‘beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained.’” Neder v. United States, 527 U.S. 1, 15 (1999) (internal citation

omitted).

Since Chapman v. California, 386 U.S. 18 (1967), the Supreme Court “has

applied harmless-error analysis to a wide range of errors,” recognizing that “most

constitutional errors can be harmless.” Arizona v. Fulminante, 499 U.S. 279, 306

(1991). Automatic reversal is necessary only where structural error deprives the

defendant of “basic protections” without which the “criminal trial cannot reliably serve

its function as a vehicle for determination of guilt or innocence, and no criminal

punishment may be regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570,

577–78 (1986) (citation omitted). Examples of structural error include the complete

denial of counsel or the right of self-representation, trial judge bias, racial discrimination

in the selection of a grand jury, denial of a public trial, and use of a defective reasonable-

doubt instruction. Neder, 527 U.S. at 8 (citing cases). By contrast, “an instruction that

omits an element of the offense does not necessarily render a criminal trial

fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id.

at 9. A district court’s error in instructing a jury on the elements of a crime is subject to

harmless-error review because it is not “so intrinsically harmful as to require automatic

reversal (i.e., ‘affect substantial rights’) without regard to” the effect of the error on the

outcome of the case. Id. at 7. The “[f]ailure to submit a sentencing factor to the jury,

like failure to submit an element to the jury, is not structural error” and is subject to

harmless-error review. Washington v. Recuenco, 548 U.S. 212, 222 (2006).

No. 12-5451 United States v. Mack Page 17

The defendant relies on a case decided after United States v. Booker, 543 U.S.

220 (2005), to argue that the Alleyne error present in this case amounts to plain error

requiring a remand for resentencing. See United States v. Morgan, 435 F.3d 660 (6th

Cir. 2006). Morgan in turn relied on Oliver, 397 F.3d at 377–78, where we read Booker

“as encouraging us to review” for plain error cases pending on direct appeal where the

Sixth Amendment issue was not asserted below. Oliver, 397 F.3d at 378. In both

Morgan and Oliver, we remanded for resentencing under Booker. But we decided those

cases before the Supreme Court issued Recuenco, which squarely controls this case.

Where a court’s instruction fails to submit a sentencing factor to the jury for

determination, we must decide whether the error was harmless. See Recuenco, 548 U.S.

at 222.

“Safeguarding the jury guarantee” requires us to conduct “a thorough

examination of the record” in conducting our harmless-error review. See Neder,

527 U.S. at 19. If it is clear to us beyond a reasonable doubt that the outcome would not

have been different even if the district court had instructed the jury on the element of

brandishing and required the jury to make a finding on that element, then harmless error

occurred. See id. at 18; United States v. Kuehne, 547 F.3d 667, 681 (6th Cir. 2008).

Count three of the indictment charged the defendant with using, carrying, and

brandishing a firearm during the carjacking and robbery of Domino’s delivery driver,

Mary Francis Miller, on July 23, 2009. At trial Miller testified that the defendant

produced a firearm and pointed it at her chest during the course of the robbery. The

government presented similar evidence of firearm brandishing by the defendant or his

accomplice during the subsequent robberies and carjackings of delivery drivers Crystal

Walker and Ryan Johnson. The defendant did not dispute below or on appeal that the

perpetrator brandished a firearm during these crimes; rather, the defendant disputes that

he was the perpetrator. The jury rejected the defendant’s denial of his involvement and

convicted him on all counts. The undisputed trial evidence convinces us that, if properly

instructed, the jury would have found beyond a reasonable doubt as to counts three and

twelve that the defendant brandished a firearm during the robberies of Miller and

No. 12-5451 United States v. Mack Page 18

Johnson and as to count nine that the defendant aided and abetted his accomplice in

brandishing a firearm during the robbery of Walker. Any Alleyne error was therefore

harmless, and automatic reversal is not warranted. See Recuenco, 548 U.S. at 222;

Neder, 527 U.S. at 18; Kuehne, 547 F.3d at 681–82. We need not consider the fourth

part of the Olano plain-error test, but “[o]n this record there is no basis for concluding

that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings.’” Johnson, 520 U.S. at 470.

Our conclusion that the Alleyne error was harmless and that plain error has not

been shown is consistent with cases recently decided in other circuits. See, e.g., United

States v. Kirklin, __ F.3d __, 2013 WL 4106462, *5–7 (7th Cir. Aug. 15, 2013)

(assuming without deciding that Alleyne error affected the defendant’s substantial rights,

but finding harmless error at Olano’s fourth step); United States v. Baylor, __ F. App’x

__, 2013 WL 3943145, *12–13 (4th Cir. Aug. 1, 2013) (unpublished per curiam)

(finding harmless error where record would have supported a jury finding of

brandishing). But cf. United States v. Lara-Ruiz, 721 F.3d 554, 558–60 (8th Cir. 2013)

(reversing and remanding for resentencing, without discussing harmless error, because

Alleyne error substantially affected the defendant’s Sixth Amendment rights and

seriously affected the fairness, integrity, or public reputation of judicial proceedings);

United States v. Lake, __ F. App’x __, 2013 WL 4017293, *1 (10th Cir. Aug. 8, 2013)

(same).

Finally, the defendant challenges for the first time on appeal the consecutive 25-

year sentences imposed on counts nine and twelve for the § 924(c) convictions relating

to the Walker and Johnson incidents. Arguing that Alleyne’s reasoning calls into doubt

the continued vitality of Almendarez-Torres v. United States, 523 U.S. 224 (1998), the

defendant contends that the jury had to find that these two convictions qualified as

“second or subsequent” convictions under § 924(c)(1)(C)(i) before the court could

impose consecutive 25-year sentences on each count.

In Almendarez-Torres, 523 U.S. at 228–29, 247–48, the Supreme Court held that

the Sixth Amendment does not require the government to set forth in the indictment and

No. 12-5451 United States v. Mack Page 19

prove beyond a reasonable doubt the fact of a prior conviction. Although Almendarez-

Torres may stand on shifting sands, the case presently remains good law and we must

follow it until the Supreme Court expressly overrules it. See Alleyne, 133 S. Ct. at 2160

n.1; United States v. Anderson, 695 F.3d 390, 398 (6th Cir. 2012); United States v.

Wynn, __ F. App’x __, 2013 WL 3941316, *1 (6th Cir. July 31, 2013) (per curiam).

This challenge is without merit.

III. CONCLUSION

We recognize that the defendant’s trial and sentencing were not without error.

Having carefully examined the record, however, we are satisfied that the defendant

received a fundamentally fair trial. Accordingly, we AFFIRM the defendant’s

convictions and sentences.