United States v. Xavier Daughtry

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11695

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

XAVIER DAUGHTRY,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:22-cr-14047-DMM-1

____________________

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2 Opinion of the Court 23-11695

Before WILLIAM PRYOR, Chief Judge, and BRASHER and ABUDU, Cir-

cuit Judges.

PER CURIAM:

Xavier Daughtry appeals his convictions and sentence for

carjacking, 18 U.S.C. § 2119(1), and brandishing a firearm in fur-

therance of a crime of violence, id. § 924(c)(1)(A)(ii). Daughtry chal-

lenges the denial of his motions for a mistrial and a new trial and

the sufficiency of the evidence. He argues that after Borden v. United

States, 593 U.S. 420 (2021), and Counterman v. Colorado, 600 U.S. 66

(2023), federal carjacking no longer qualifies as a crime of violence,

18 U.S.C. § 924(c)(3)(A). He also argues that his sentence is unrea-

sonable. We affirm.

I. BACKGROUND

A grand jury indicted Daughtry for carjacking, id. § 2119(1),

and brandishing a firearm in furtherance of a crime of violence, id.

§ 924(c)(1)(A)(ii). Before trial, the district court ordered a compe-

tency evaluation. The competency report stated that Daughtry suf-

fered from no severe mental illness or defect, was competent to

stand trial, and was sane at the time of the charged offenses. The

report also stated that Daughtry met the criteria for “malingering”

by intentionally misrepresenting and exaggerating his symptoms to

“avoid entirely or receive diminished repercussions for his criminal

behavior.” Daughtry and the government stipulated that he was

competent to proceed.

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23-11695 Opinion of the Court 3

At a change of plea hearing, the district court determined

that Daughtry did not intend to plead guilty after he repeatedly in-

terrupted the district court with profane language. In response to

the courtroom deputy’s statement about proceeding to trial,

Daughtry said, “I’m gonna kill one of you crackers, man.” At the

beginning of trial, the district court warned Daughtry that, alt-

hough he should be present in the courtroom, “if we have any kind

of—if what happened last time were to occur again,” he “can be

removed from the courtroom and watch the trial from the cell

block.” Daughtry said, “No problem then.”

At trial, Officer Catalina Escobar testified for the govern-

ment that she responded to a 9-1-1 call reporting that a car was sto-

len from a convenience store. At the convenience store, the victim,

V.G., told Escobar that a man approached her car, pointed a gun at

her, and told her to “back the f**k up.” V.G. said that the man

drove northbound in her rental car, a white Nissan Altima. After

another officer pulled someone over for driving the car five

minutes away from the convenience store, Escobar drove V.G. to

her car for a “show-up” identification of the driver. V.G. identified

the suspect as the man who stole her car and stated that her identi-

fication was in a pink purse on the passenger side. Escobar’s

body-worn camera footage, capturing her interaction with V.G.

and V.G.’s identification of the suspect, was played for the jury.

The jury also saw V.G.’s written statement that she exited the con-

venience store, ran up to her car, told the man that the car be-

longed to her, and the man “put a gun up to” her and said “back

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4 Opinion of the Court 23-11695

the f**k up.” The written statement described the man as black and

wearing no shirt and stated, in parentheses, “(has dreads).”

Deputy John Leckenbusch testified that he received a call to

be on the lookout for a stolen white rental car and found one

matching that description. Dispatch confirmed that the tag number

on that car matched the tag number for the stolen car. He initiated

a traffic stop and saw a gun on the driver’s seat and a purse. He

stated that the dispatch call described the suspect as a shirtless black

male with a shirt on his head. He arrested the driver.

V.G. testified that she went to the convenience store for a

drink and left her car running but locked because she was alone at

night. After she left the store, she saw “someone walking with a

purpose up to [her] vehicle.” She confronted the man and said that

was her car. The man turned around, pointed a gun “to [her] face,”

and told her to “back the F up.” She was afraid that he would shoot

her. While he was adjusting the seat, she asked for her cell phone,

and he handed her the phone, shut the door, and drove away. Be-

cause the man kept his eyes on her when he was speaking, she got

a good look at his eyes. The man was shirtless but had something

over his head, which she assumed was his shirt. After he left, she

returned to the store and called 9-1-1.

While V.G. was testifying about her interaction with the of-

ficers, Daughtry interrupted her testimony and said, “F**k your

a**. Stop trying playing [sic] with me.” V.G. then identified

Daughtry as the man who stole her car as well as the man she iden-

tified at the show-up identification and described him as wearing a

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23-11695 Opinion of the Court 5

“blue shirt, black pants, [and] shackles.” Daughtry then interrupted

the testimony as follows:

Daughtry: How the f**k can you said I had dread? [sic]

V.G.: Shut up. Sorry.

Prosecutor: Can you describe—

Daughtry: You make no f**king sense, b**ch. You make

your f**king mind up.

V.G.: Can I say something?

Daughtry: F**king thing you said, f**king jigglings (pho-

netic). Shut the f**k up, man. F**k.

The district court asked Daughtry to control himself, but

Daughtry continued:

Daughtry: Man, I ain’t controlling. F**k them.

V.G.: You are lucky. I would have blew [sic] your

f**king head off for playing with me.

Daughtry: Man, you play games though in your

mother f**king head.

V.G. proceeded to testify that she was “very” confident that

Daughtry was the man who stole her car at gunpoint and that she

wrote that the man “(has dreads)” in parentheses on her written

statement because she did not see the dreads, but someone at the

convenience store told her that the man had dreads. Daughtry in-

terrupted, “F**k a**.” After the government asked V.G. to identify

some exhibits, Daughtry interrupted, “Man, bro, what you gonna

do, bro? F**k, n****r, what you going to do? N****r will knock

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6 Opinion of the Court 23-11695

your b**ch a** out, bro, (indecipherable) before I knock you out,

man.”

While V.G. was identifying photographs of her car,

Daughtry interjected, “You tighten up whole a** n****r. Self a**

n****r over there smiling at me. What?” Daughtry continued:

Daughtry: B**ch a** n****r, I kill you.

District Court: Mr. Daughtry, you need to—

Daughtry: F**k n****r, I kill you too.

District Court: Mr. Daughtry, I am going to remove

you from the courtroom if you don’t

stop.

Daughtry: F**k n****r, do it.

District Court: All right. Please remove Mr. Daughtry.

Daughtry: F**k a** dump. Fake mother f**ker.

After Daughtry was removed, V.G. identified a photograph

that depicted the firearm that officers found in her car. She testified

that she did not place that firearm in the car. The district court

paused V.G.’s testimony to tell the jury:

I have ordered [Daughtry] removed from the court-

room based on the outburst that you-all saw. They

are placing him in an interview room which has the

ability to watch the trial. We won’t be able to hear

him, but he can see everything that’s occurring in the

courtroom. I ask you-all to decide the case based on

what he’s accused of doing as opposed to what you

have seen happen in the courtroom.

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23-11695 Opinion of the Court 7

Defense counsel confirmed that she “believe[d] what [the district

court] said was sufficient for now.”

After a break, Daughtry moved for a mistrial on the ground

that the jury would be unable to reach a verdict without being prej-

udiced by Daughtry’s behavior in the courtroom and interaction

with V.G. The district court denied the motion because Daughtry,

“despite warnings, has created this circumstance. I think the jury

have said they will set aside what happened.” The district court

asked defense counsel what she would have it tell the jury. Defense

counsel asked the district court to explain that trials are stressful,

Daughtry was not functioning well, and his behavior should not be

used as evidence. When the jury returned, the district court in-

structed, “Let me again ask you, in deciding the case, let’s focus on

the crime that he is charged with and disregard what occurred in

the courtroom.”

Defense counsel requested a sidebar to request that a cam-

era be shut down so that Daughtry could not be seen in court but

could see what was happening. After the district court confirmed

that Daughtry could see and hear the courtroom, defense counsel

renewed the motion for a mistrial on the same ground. The district

court stated that it instructed the jury as requested, and defense

counsel stated that she would address the matter later.

After V.G. concluded her testimony, Sergeant Kyle MacCar-

thy testified that he saw a firearm on the driver’s seat and a black

t-shirt on the front passenger-side seat. He inspected the firearm,

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8 Opinion of the Court 23-11695

removed the magazine, and ejected a round from the chamber.

The hammer of the firearm was cocked, ready to fire.

The government rested, and Daughtry moved for a judg-

ment of acquittal. He argued that the evidence was insufficient to

prove that he was the perpetrator or that he intended to cause

death or serious bodily injury. He also argued that carjacking was

not a crime of violence because it could be committed through in-

timidation, which did not require use of force. The district court

denied the motion. Before closing arguments, the district court

asked Daughtry through intra-court video and audio if he wanted

to return, but the Marshal responded that Daughtry “made it clear

he does not want” to return. Defense counsel confirmed that there

was nothing else the district court could do.

The district court again instructed the jury to base its verdict

only on the evidence presented and not on any sympathy for or

prejudice against Daughtry. The jury convicted him on all counts

and found that the firearm was brandished.

Daughtry moved for a new trial on the grounds that he was

deprived of his Fifth Amendment right to due process and Sixth

Amendment right to an impartial jury. Defense counsel asserted

that Daughtry threatened the entire jury and that one juror gasped

during Daughtry’s exchange with V.G.

The district court denied the motion for a new trial. It ex-

plained that Daughtry’s competency evaluation revealed evidence

of “malingering” to avoid repercussions for his behavior. It stated

that Daughtry threatened the Marshals, who recommended that

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23-11695 Opinion of the Court 9

he be restrained during trial for safety reasons, and recounted his

outbursts and verbal exchanges with V.G., the Marshals, and the

district court. It ruled that Daughtry was not entitled to a new trial

because of the disruption that he caused, particularly where the dis-

trict court provided several curative instructions, and a new trial

would not change the result because the evidence of his guilt was

overwhelming. The district court also explained that, in the light

of his psychological report, Daughtry’s behavior appeared to be an

intentional attempt to seek advantage. The district court cited sev-

eral decisions of this Court and the Supreme Court involving de-

fendants’ courtroom outbursts.

Daughtry’s presentence investigation report provided a to-

tal offense level of 25 and a criminal history score of III, which re-

sulted in an advisory guidelines range of 70 to 87 months of impris-

onment for carjacking plus a mandatory consecutive sentence of 84

months for brandishing a firearm during the carjacking. The report

described the findings from Daughtry’s court-ordered forensic

evaluation, which lasted from October to December 2022, that

Daughtry was competent and was “malingering” by exhibiting dis-

ruptive behaviors to obtain special custody in prison. Daughtry did

not object to the report but moved for a downward variance based

on his difficult childhood, family circumstances, and mental health

conditions, as well as his criminal history category being overin-

flated because he was on probation during the instant crimes.

At sentencing, Daughtry presented testimony from

Dr. Sheila Rapa, a clinical psychologist, who testified that based on

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10 Opinion of the Court 23-11695

her three-hour evaluation of him, she believed that he had signifi-

cant mental health issues. But Dr. Rapa testified that she was una-

ware of his previous competency evaluation or that he was found

to be malingering.

The district court sentenced Daughtry to a total sentence of

156 months of imprisonment based on 72 months for the carjack-

ing conviction and a consecutive 84 months for brandishing the

firearm. It stated that it considered the statutory sentencing factors,

18 U.S.C. § 3553(a), particularly the nature and circumstances of

the crime. It also considered Daughtry’s personal characteristics,

his personal threats of violence at trial, and his criminal history,

which included violence. It explained that it had “no doubt that

Mr. Daughtry [had] experienced traumatic experiences, and those,

undoubtedly, [] impacted him,” but that “above all” there was “a

need to protect the public in this case.”

II. STANDARDS OF REVIEW

Five standards govern our review. We review the denial of

motions for a mistrial and a new trial for abuse of discretion. United

States v. Reeves, 742 F.3d 487, 504 (11th Cir. 2014). We review argu-

ments raised for the first time on appeal for plain error, which re-

quires the defendant to establish an error that was plain and that

affected his substantial rights. United States v. Olano, 507 U.S. 725,

732 (1993). We review the sufficiency of the evidence de novo and

view “the evidence in the light most favorable to the government,

with all inferences and credibility choices drawn in the govern-

ment’s favor.” United States v. Feldman, 931 F.3d 1245, 1253, 1257

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23-11695 Opinion of the Court 11

(11th Cir. 2019) (quotation marks omitted). The evidence will be

sufficient to sustain a conviction unless “no rational trier of fact

could have found proof of guilt beyond a reasonable doubt.” United

States v. Shabazz, 887 F.3d 1204, 1221 (11th Cir. 2018). We review

whether an offense is a crime of violence, 18 U.S.C. § 924(c), de

novo. United States v. Bates, 960 F.3d 1278, 1285 (11th Cir. 2020). We

review the reasonableness of a sentence and weighing of the sen-

tencing factors, 18 U.S.C. § 3553(a), for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51 (2007).

III. DISCUSSION

We divide our discussion in four parts. First, we reject

Daughtry’s argument that he was entitled to a new trial. Second,

we explain that sufficient evidence supports his convictions. Third,

we reject his argument that Borden and Counterman abrogated our

precedent holding that carjacking is a crime of violence under the

elements clause, 18 U.S.C. § 924(c)(3)(A). Fourth, we explain that

his sentence is substantively reasonable.

A. The District Court Did Not Abuse Its Discretion in Denying

Daughtry’s Motions for a Mistrial and a New Trial.

Daughtry argues that the district court should have declared

a mistrial because the jury was tainted by prejudice, which violated

his rights to a fair trial, an impartial jury, and the presumption of

innocence under the Fifth and Sixth Amendments. He argues that

the jury was prejudiced by his profane outbursts, argumentative

exchanges, and death threats; by V.G. referencing Daughtry’s

“shackles”; and by the district court referencing his removal to a

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remote cell. He also argues that the district court abused its discre-

tion by applying incorrect legal standards. We disagree.

The district court did not abuse its discretion in denying

Daughtry’s motions. It is well established that a defendant may not

benefit from his own misconduct. See United Stats v. Rouco, 765 F.2d

983, 995 (11th Cir. 1985); see also United States v. McCormac, 309 F.3d

623, 626–27 (9th Cir. 2002) (holding that the defendant was not en-

titled to a mistrial after she argued with the judge and was held in

contempt); United States v. Stewart, 256 F.3d 231, 242 (4th Cir. 2001)

(holding that the defendant was not entitled to a mistrial after he

pretended to shoot the jury).

Daughtry argues that he cannot waive his right to a fair trial

through misconduct, citing Braswell v. United States, 200 F.2d 597

(5th Cir. 1952), and McKissick v. United States, 398 F.2d 342 (5th Cir.

1968). In Braswell, the former Fifth Circuit held that a violent alter-

cation caused by two of seven defendants at a joint trial and “highly

prejudicial” comments by the district judge about the intoxicated

state of some of the defendants and possibly a defense witness prej-

udiced the jury such that none of the defendants received a fair and

impartial trial. 200 F.2d at 600–02. In McKissick, the former Fifth

Circuit held that a mistrial was necessary “to attain substantial jus-

tice” after the defendant’s counsel reported that the defendant per-

jured himself at his first trial and asked counsel for help in present-

ing more perjured testimony. 398 F.2d at 343.

Braswell or McKissick do not support Daughtry’s argument.

Unlike the defendants in Braswell and McKissick, the district court

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found that Daughtry’s misconduct at trial appeared to be an inten-

tional effort to obtain a benefit and that his outbursts at trial were

consistent with his outbursts during his competency evaluation,

which resulted in the finding that he was malingering to obtain a

benefit. Unlike in McKissick, the district court did not abuse its dis-

cretion in finding that “substantial justice” would be subverted, in-

stead of attained, by granting Daughtry’s motions and allowing

him to benefit from his own wrongdoing. See Rouco, 765 F.2d at

995; McKissick, 398 F.2d at 344. We agree with our sister circuit that,

if “such behavior on the part of the defendant were held to require

a mistrial, it would provide an easy device for defendants to pro-

voke mistrials whenever they might choose to do so.” Stewart, 256

F.3d at 242 (internal quotation marks omitted).

The district court minimized the risk of prejudice to

Daughtry with several curative instructions. It instructed the jury

to “focus on the crime” and to “disregard what occurred in the

courtroom.” It told defense counsel that it believed that the jury

expressed that it would “set aside what happened.” After it asked

defense counsel if there was anything else that it should do, defense

counsel conceded that the curative instruction was “sufficient for

right now.” And it found that a second trial would not produce a

different outcome because the evidence of Daughtry’s guilt was

overwhelming, and it had no reason to believe that Daughtry, who

assured the district court after his outbursts at the change-of-plea

hearing that there would be “no problem” during trial, would not

continue his disruptive behavior at a second trial.

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The district court did not plainly err by not sua sponte declar-

ing a mistrial after V.G. identified Daughtry as wearing “shackles.”

Although “restraints, if visible, may prejudice the jury,” Daughtry

identifies no precedent holding that a witness’s passing reference

to a defendant’s restraints, without anything in the record suggest-

ing that the restraints were visible to the jury, warrants a mistrial.

United States v. Ahmed, 73 F.4th 1363, 1377 (11th Cir. 2023); see

United Stats v. Moore, 954 F.3d 1322, 1330 (11th Cir. 2020); United

States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014). Even if

Daughtry could establish plain error, he fails to establish a reason-

able probability that, but for the alleged error, the outcome of his

trial would have been different in the light of the strong evidence

of his guilt. See United States v. McLellan, 958 F.3d 1110, 1119 (11th

Cir. 2020). Insofar as he challenges his removal to a remote cell and

the district court referencing his absence, the record reveals that

after he was warned that he would be removed if he did not stop

interrupting, he replied, “Do it.” And after he was removed, de-

fense counsel asked for a sidebar and a curative instruction, which

the district court provided. Daughtry cannot challenge receiving

what he asked the district court to do. See United States v. Brannan,

562 F.3d 1300, 1306 (11th Cir. 2009).

Daughtry also argues that the district court applied the in-

correct legal standards when it denied his motions while emphasiz-

ing his waiver of the right to be present, Fed. R. Crim. P. 43(c). But

in considering whether to grant a mistrial, the district court did not

rule that Daughtry waived his right to be present. Instead, the dis-

trict court considered whether Daughtry was entitled to the benefit

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23-11695 Opinion of the Court 15

of a new trial based on his own misconduct. Although the district

court stated that Daughtry must prove that the alleged error justi-

fying a mistrial likely had a “substantial influence” on the jury’s ver-

dict, the district court cited the correct harmless-error standard,

Fed. R. Crim. P. 52, which provides that any error that does not

affect “substantial rights” must be disregarded.

B. Sufficient Evidence Supports Daughtry’s Convictions.

Daughtry argues that the government failed to present suf-

ficient evidence that he committed the carjacking offense due to

evidentiary discrepancies about the perpetrator’s description. He

also argues that the evidence was insufficient to establish that he

acted with the specific intent “to cause death or serious bodily

harm” because he lowered his weapon before taking control of the

car, and V.G. remained by the car until he handed her cell phone

to her and drove away. He contends that without sufficient evi-

dence to support the carjacking offense, insufficient evidence sup-

ports his section 924(c) conviction. We disagree.

Sufficient evidence supports Daughtry’s convictions. V.G.

identified Daughtry as the man who pointed a firearm at her and

drove away in her car. She reported the crime and described the

perpetrator to Escobar. The description of the perpetrator and the

crime were recorded on Escobar’s body-worn camera and played

for the jury. Within five minutes of the 9-1-1 dispatch call,

Leckenbusch stopped a car matching the description and tag num-

ber of V.G.’s car. Daughtry was driving the car. Escobar drove V.G.

to her car for a “show-up” identification, and V.G. identified

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16 Opinion of the Court 23-11695

Daughtry as the man who pointed a firearm at her and stole her

car. Daughtry highlights the discrepancy on V.G.’s written state-

ment that the perpetrator “(has dreads),” but V.G. explained that

she added that information in parentheses specifically because it

came from another person at the convenience store. She also testi-

fied that because the perpetrator looked at her when he was speak-

ing, she was able to get a good look at his eyes.

Sufficient evidence also supports the finding that Daughtry

intended to cause death or serious bodily harm if necessary to steal

the car. V.G. testified that Daughtry pointed a firearm at her and

told her to “back the f**k up” when she approached her car, and

MacCarthy testified that the firearm was ready to fire because a

bullet was in the chamber and the hammer was cocked back. The

jury was entitled to find from this evidence that Daughtry intended

to harm V.G. if she did not comply with his orders. See Holloway v.

United States, 526 U.S. 1, 8–12 (1999); United States v. Caldwell, 81

F.4th 1160, 1186 (11th Cir. 2023). And he offers no other reason

why the evidence fails to support his section 924(c) conviction.

C. Carjacking Qualifies as a Crime of Violence, 18 U.S.C. § 924(c).

Daughtry argues that after Borden and Counterman, carjack-

ing does not qualify as a crime of violence under the elements

clause, 18 U.S.C. § 924(c)(1)(A), because carjacking can be commit-

ted through intimidation with a mens rea of recklessness. Daughtry

acknowledges that we held in Smith that carjacking is a crime of

violence under the elements clause, id., but he contends that Smith

no longer controls. See In re Smith, 829 F.3d 1276 (11th Cir. 2016).

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A prior panel’s holding is binding on all later panels unless it is over-

ruled or undermined to the point of abrogation by a decision of the

Supreme Court or of this Court sitting en banc. United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The decision must be

“clearly on point” and “actually abrogate or directly conflict with,

as opposed to merely weaken, the holding of the prior panel.”

United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).

Smith controls. In Smith, we reaffirmed that federal carjack-

ing is a crime of violence—and a section 924(c) predicate—under

the elements clause. 829 F.3d at 1280. We explained that a section

924(c) conviction with carjacking as the predicate is valid regardless

of the residual clause because the conviction “meets the require-

ments of that statute’s [elements] clause.” Id. at 1281. And we re-

jected the same intimidation argument Daughtry makes now. See

id. at 1281 n.5.

Borden and Counterman did not overrule Smith. Borden held

that a criminal offense that requires only a mens rea of recklessness

cannot qualify as a “violent felony” under the Armed Career Crim-

inal Act, 18 U.S.C. § 924(e), when it does not require the employ-

ment of force against another person. 593 U.S. at 423, 437–42, 445.

And Counterman held that for criminal offenses involving true

threats of violence, the government must prove that the defendant

possessed a mens rea of at least recklessness as to the threatening

statements. 600 U.S. at 69, 73. Because neither Borden nor Counter-

man abrogated our holding in Smith that carjacking qualifies as a

crime of violence under the elements clause, 18 U.S.C.

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18 Opinion of the Court 23-11695

§ 924(c)(3)(A), we remain bound by Smith. See Archer, 531 F.3d at

1352; Kaley, 579 F.3d at 1255.

D. Daughtry’s Sentence is Substantively Reasonable.

The district court did not abuse its discretion by imposing a

guidelines-range sentence of 72 months of imprisonment followed

by a consecutive 84 months of imprisonment. Daughtry challenges

the decision not to vary downward to account for his mental health

issues, difficult childhood, and overinflated criminal history. But

the district court considered Daughtry’s personal history and his

mental health evaluations and testimony. It acknowledged his trau-

matic experiences and stated that it reviewed the details of his crim-

inal history, which involved more violence. The district court was

entitled to find that, despite Daughtry’s mitigating circumstances,

the “need to protect the public” deserved more weight. See United

States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).

Daughtry’s sentence is substantively reasonable. See United States v.

Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).

IV. CONCLUSION

We AFFIRM Daughtry’s convictions and sentences.