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.
_________________

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
No. 12-5451 United States v. Mack Page 2

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.
No. 12-5451 United States v. Mack Page 6

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
No. 12-5451 United States v. Mack Page 8

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
No. 12-5451 United States v. Mack Page 10

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.