United States v. Charlton

United States Court of Appeals
For the First Circuit

No. 08-1797

UNITED STATES OF AMERICA,

Appellee,

v.

TREVOR CHARLTON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.

Mark E. Howard, with whom Kacavas Ramsdell & Howard, PLLC, was
on brief for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.

April 1, 2010
 TORRUELLA, Circuit Judge. Trevor Charlton ("Charlton"),

an African-American, was convicted by a jury of one count of being

a felon in possession of a firearm,1 in violation of 18 U.S.C.

§ 922(g)(1).2 The district court enhanced Charlton's sentence

pursuant to the Armed Career Criminal Act ("the ACCA"), 18 U.S.C.

§ 924(e).3

1
Specifically, the grand jury charged that, "[o]n or about
July 25, 2004, in Brockton in the District of Massachusetts, . . .
Charlton . . . [,] having previously been convicted in a court of
a crime punishable by imprisonment for a term exceeding one year,
did knowingly possess, in and affecting commerce, a firearm, to
wit, a Star, Model 30M, 9mm semi[-]automatic pistol, bearing serial
number 1878329."
2
18 U.S.C. § 922(g)(1) provides:

It shall be unlawful for any person who has been
convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to ship
or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.
3
18 U.S.C. § 924(e) provides, in part:

In the case of a person who violates section 922(g) of
this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for
a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the
sentence of, or grant a probationary sentence to, such
person with respect to the conviction under section
922(g).

-2-
 On appeal, Charlton makes two claims. First, Charlton

contends that the empanelment of the jury that convicted him was

tainted by racial discrimination in violation of the Constitution

and Batson v. Kentucky, 476 U.S. 79 (1986). Second, Charlton

argues that the district court's imposition of the ACCA enhancement

violated his Constitutional rights because the government did not

plead or prove beyond a reasonable doubt the requisite predicate

convictions, nor did Charlton admit those convictions. Finding

that the district court committed no error in granting the

government's peremptory strike at issue in this case, we affirm

Charlton's conviction. Furthermore, finding that we are bound by

the United States Supreme Court ruling in Almendárez-Torres v.

United States, 523 U.S. 224, 226-27 (1998), and our own precedent

in United States v. Richards, 456 F.3d 260, 262 (1st Cir. 2006),

cert. denied, 550 U.S. 905 (2007), we affirm Charlton's sentence.

I. Facts and Procedural History

A. Incident (2004) and Indictment (2004)

As we observed in 2007, when this case was first before

us, the events leading to Charlton's arrest are generally

undisputed, and their substance is not at issue on this appeal

either. We thus will present these events even more briefly than

we did in our prior opinion in this matter. See United States v.

Charlton, 502 F.3d 1, 2-4 (1st Cir. 2007).

-3-
 During the evening of July 25, 2004, while investigating

a shooting, police in Brockton, Massachusetts found a loaded

firearm wrapped in a white shirt on a porch near where Charlton was

standing with four other men. Later that night, after first

offering various denials, Charlton admitted to the police that he

possessed the firearm, owned the white shirt, and had recently

stabbed a man.

On September 29, 2004, a grand jury sitting in Boston,

Massachusetts, returned a one-count indictment against Charlton,

charging him with being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1).

B. First Trial (2006) and Charlton's Denied Motion to Dismiss
(2006)

On March 13, 2006, Charlton's first trial began. Seven

days later, on the government's motion and over Charlton's

objection, the district court declared a mistrial after the jury

repeatedly declared it was deadlocked.

On May 23, 2006, Charlton filed a motion to dismiss the

indictment against him on the ground that "further prosecution

would violate the Double Jeopardy clause of the Fifth Amendment to

the United States Constitution." On June 12, 2006, the district

court denied Charlton's motion. United States v. Charlton, 2006

U.S. Dist. LEXIS 97012, at *14 (D. Mass., June 12, 2006). On

August 10, 2007, we affirmed. Charlton, 502 F.3d at 6.

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C. Second Trial -- Jury Selection (2007)

On December 3, 2007, Charlton's second trial began, and

jury selection commenced. Because this was a non-capital felony

case, the government possessed six peremptory challenges to

prospective jurors and Charlton had ten. See Fed. R. Crim. P.

24(b)(2). Each side also possessed one additional peremptory

challenge for the two prospective alternate jurors. See Fed. R.

Crim. P. 24(c)(4)(A).

The district court qualified the venire, which consisted

of fifty-five potential jurors. The district court and defense

counsel argued about the precise number of African-Americans in the

jury pool, which defense counsel stated was seven and the district

court at one point estimated was twelve.4

1. Peremptory Challenges -- Round One

The district court proceeded by seating the first twelve

potential jurors, which the defense noted included two African-

Americans. The government then exercised three of its peremptory

challenges, striking Juror No. 23, one of the two African-

Americans. Next, the defense exercised five of its peremptory

challenges, after which the defense objected to the government's

peremptory challenge of Juror No. 23, stating: "she's one of the

4
The district court alternated between saying that its estimate
of the number of African-Americans in the jury pool "doesn't even
count the Chinese guy and the people with Hispanic surnames" and
"included people with Hispanic and Chinese names."

-5-
two black jurors seated in the jury, and I think one of the few

black jurors in the jury pool." The government attorney, when

asked by the district court if he "want[ed] to give a reason for

the record," responded: "It has nothing to do with the race, just

she's an attorney, and I do not want an attorney on the jury." The

district court accepted this explanation and excused Juror No. 23.

2. Peremptory Challenges -- Round Two

The district court then seated eight new potential

jurors, including one African-American. The defense then exercised

two of its five remaining peremptory challenges. The government

followed by exercising one of its three remaining peremptory

challenges, striking Juror No. 37, the newly called African-

American. The defense again objected, stating: "This is the second

African-American that's being challenged. Our client is entitled

to a fair jury. If she's off, there will be one African-American

on the jury, and I'm pressing that." The government, when asked by

the district court why he was striking the prospective juror,

responded:

[S]he's a member of the clergy. It has
nothing to do with race . . . . Whether she
was black, white, Hispanic, Asian, male or
female, I'd be challenging her because I think
members of the clergy tend to be more
sympathetic towards people and less likely to
judge them, and I note for the record the
first two that I challenged last time happened
to be white males.

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The district court accepted this explanation, stating: "I do know

that, typically speaking, prosecutors challenge clergy. I mean,

that's the way they do it, so I'm not going to call this a black

challenge."

After then determining that there was a maximum of two

African-Americans in the remaining jury pool,5 the district court,

referring to one of those prospective jurors, asked the government:

"She is African-American, and I'm not striking three, so will you

withdraw [your peremptory challenge]?" The government agreed to

withdraw its peremptory challenge against Juror No. 37.

5
It is unclear whether, at this point, there was one African-
American remaining in the jury pool, as the defense claims, or two,
as the district court and the government seemed to suggest. The
relevant portion of the transcript is as follows:

THE COURT: On the other hand, there are two [African-
Americans] out there in the pool, at least right now,
that I would identify that way . . . .

. . .

MR. RICHARDSON: -- before we get to it, who else are we
calling African-American that's still out there?

THE COURT: It looks like there are two.

MS. BYRNE: One of them is his father.

THE COURT: No. There's one.

. . .

MR. RICHARDSON: I'm just trying to figure out who they
are because if one of them is being counted as African-
American and one has a son serving in prison --

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 3. Peremptory Challenges -- Rounds Three Through Six

In the third round, the district court seated two new

potential jurors, one of which the defense struck. In the fourth

round, the district court seated one new potential juror, which the

defense struck. At this point, the defense had one remaining

peremptory challenge and, because it had withdrawn its previous

peremptory challenge, the government had three. In the fifth

round, the district court seated one new potential juror, which the

defense struck, exhausting its peremptory challenges.

In the sixth round, the district court seated one new

potential juror, Juror No. 43, an African-American. The government

exercised one of its three remaining peremptory challenges,

striking Juror No. 43. The government, without prompting from the

district court, provided the following explanation, to which the

defense did not object:

Your Honor, this is a juror who indicated that
she's got a son who went to prison for
possession of a firearm. Therefore I'm going
to exercise a peremptory as to her. And I
just do want to make a record that I
understand the Court's position, but for
whatever it's worth, I do think it's unfair
that the government is precluded, for reasons
that have absolutely nothing to do with race,
from challenging people that under any other
circumstance would be unremarkable anyway.
That's why I'm challenging this juror.

At this point, the defense had no remaining peremptory challenges

and the government had two.

-8-
 4. Peremptory Challenges -- Final Rounds

The district court then seated the final juror, after

which the district court called the first two candidates for the

alternate slots. The government exercised its sole peremptory

challenge for the two prospective alternate jurors, striking Juror

No. 47, who was not African-American. The government, without

prompting from the district court, provided the following

explanation, to which the defense did not object: "This is the

other individual who indicated in this case [that] a[] cousin[,] I

believe, is in jail for possession [of a firearm]." Afterwards,

the district court seated one new potential alternative juror, to

which neither party objected.

Of the twelve jurors who were ultimately empaneled, two

-- one of the first twelve prospective jurors to be called from the

jury pool and Juror No. 37 -- were African-American.

D. Second Trial -- Stipulation (2007), Conviction (2007),
Sentencing (2008), and Appeal (2008)

At trial, the parties stipulated to the fact that, prior

to July 25, 2004, Charlton was convicted of a crime punishable by

imprisonment for a term exceeding one year. The jury trial

concluded after seven days on December 10, 2007, resulting in the

conviction of Charlton.

A presentence investigation report ("PSI report"), dated

May 6, 2008, documented Charlton's prior criminal history,

including three felony convictions under Massachusetts law.

-9-
Concluding that these convictions subsumed either a violent felony

or an applicable serious drug offense committed on occasions

different from one another, the probation officer who prepared the

PSI report recommended that Charlton be sentenced as an armed

career criminal -- a classification that would trigger a fifteen-

year minimum sentence. 18 U.S.C. § 924(e). Absent that

classification, Charlton's total offense level and prior criminal

history would have placed him in a lower guidelines sentencing

range and, therefore, probably would have yielded a lesser sentence

than the district court imposed on him. On June 9, 2008, the

district court, observing that Charlton "had quite a few prior

convictions," sentenced Charlton to a term of imprisonment of 204

months, sixty months of supervised release, and a $100 special

assessment.

Judgment was entered on June 11, 2008. Five days later,

Charlton filed his timely notice of appeal. Charlton challenges

both the peremptory challenges the government exercised in the

process of jury empanelment and the imposition of the ACCA.

II. Discussion

A. Batson Challenge

On appeal, Charlton argues that empanelment of the jury

that convicted him was tainted by racial discrimination and

therefore violated his rights to equal protection of the law under

the Fifth Amendment and Batson, 476 U.S. 79 (1986). Charlton

-10-
contends that the government's exercise of peremptory challenges

"was heavily weighted to exclude African-Americans from the jury."

Charlton concedes that the government provided race-neutral

explanations for its peremptory challenges. He argues, however,

that "those explanations appear pretextual." Consequently,

Charlton states, his conviction must be reversed and the matter

remanded for a new trial. As discussed below, we find that the

district court committed no error in accepting the explanations for

the peremptory challenges the government exercised at trial.

1. Background and Framework

The Supreme Court has observed that "a defendant has no

right to a petit jury composed in whole or in part of persons of

his own race . . . but the defendant does have the right to be

tried by a jury whose members are selected pursuant to non-

discriminatory criteria." Batson, 476 U.S. at 85-86 (internal

quotation marks omitted) (citing Strauder v. West Virginia, 100

U.S. 303, 305 (1880); Martin v. Texas, 200 U.S. 316, 321 (1906); Ex

parte Virginia, 100 U.S. 339, 345 (1880)). As we have previously

observed, in the 1986 case of Batson, the Supreme Court "held that

the defendant's equal protection rights under the Fourteenth

Amendment were violated where jury selection at his trial had been

affected by invidious racial discrimination." United States v.

Girouard, 521 F.3d 110, 112 (1st Cir. 2008); see also Batson, 476

U.S. at 89 ("[T]he component of the jury selection process at issue

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here, the State's privilege to strike individual jurors through

peremptory challenges, is subject to the commands of the Equal

Protection Clause. Although a prosecutor ordinarily is entitled to

exercise permitted peremptory challenges for any reason at all, as

long as that reason is related to his view concerning the outcome

of the case to be tried, the Equal Protection Clause forbids the

prosecutor to challenge potential jurors solely on account of their

race or on the assumption that black jurors as a group will be

unable impartially to consider the State's case against a black

defendant.") (internal citations and quotation marks omitted).

"Batson applies to proceedings in federal courts under the Fifth

Amendment's Due Process Clause." Girouard, 521 F.3d at 112 n.1.

As we have also previously observed, "[t]he Batson

framework [for challenging jury composition] requires three steps."

Id. at 113; see also Snyder v. Louisiana, 552 U.S. 472, 476 (2008).

We have articulated those steps as follows:

First, the defendant must make a prima facie
showing of discrimination in the prosecutor's
launching of the strike. If the defendant
fulfills this requirement by establishing,
say, a prima facie case of a racially driven
impetus, then the prosecutor must proffer a
race-neutral explanation for having challenged
the juror. If the prosecutor complies, then,
at the third and final stage, the district
court must decide whether the defendant has
carried the ultimate burden of proving that
the strike constituted purposeful
discrimination on the basis of race.

-12-
Girouard, 521 F.3d at 113 ("The three-step process attempts to

balance the time-honored principle of unfettered exercise of the

peremptory challenge with a need to conform trial process to the

Constitution."); see also Snyder, 552 U.S. at 476-77.

"The opponent of a strike bears the burden of proof

throughout the inquiry." Girouard, 521 F.3d at 113. In order to

establish a prima facie case of discrimination, "the moving party

must 'raise an inference that the prosecutor used [peremptory

challenges] to exclude the veniremen from the petit jury' because

of their membership in a protected class." Aspen v. Bissonnette,

480 F.3d 571, 574 (1st Cir. 2007) (citation omitted). We have

recognized that "the Supreme Court has recently reiterated that the

Batson prima facie standard is not onerous." Id. (citing Johnson

v. California, 545 U.S. 162, 170 (2005)).

2. Standard / Scope of Review

A preserved Batson claim is one in which contemporaneous

objection was raised at trial; an unpreserved Batson claim is one

in which no such objection was raised at trial. See United States

v. Pulgarin, 955 F.2d 1, 1-2 (1st Cir. 1992). "We review preserved

Batson claims for clear error, including cases in which the trial

court finds no prima facie case of discrimination." Girouard, 521

F.3d at 115; see also Snyder, 552 U.S. at 477. "We will not find

clear error unless, after reviewing all of the evidence, we are

left with the definite and firm conviction that a mistake has been

-13-
committed." United States v. González-Meléndez, 594 F.3d 28, 35

(1st Cir. 2010) (citation and internal quotation marks omitted).

"We . . . apply plain error review to unpreserved Batson claims

. . . ." Girouard, 521 F.3d at 115. In applying this standard of

review, we have observed a Supreme Court ruling that, "[u]nless a

discriminatory intent is inherent in the prosecutor's explanation,

the reason offered will be deemed race neutral." Pulgarin, 955

F.2d at 2 (citing Hernández v. New York, 500 U.S. 352, 360 (1991)).

"We have cautioned those who object to peremptory strikes

that they should come forward with facts, not just numbers alone."

Girouard, 521 F.3d at 116 (internal quotation marks omitted).

Rather, "in considering a Batson objection, or in reviewing a

ruling claimed to be Batson error, all of the circumstances that

bear upon the issue of racial animosity must be consulted."

Snyder, 552 U.S. at 478. Those circumstances include both numeric

and non-numeric forms of evidence:

Relevant numeric evidence includes the
percentage of strikes directed against members
of a particular group, the percentage of a
particular group removed from the venire by
the challenged strikes, and a comparison of
the percentage of a group's representation in
the venire to its representation on the jury.
Relevant non-numeric evidence includes the
striking party's questions and statements
during the voir dire, whether the striking
party had unused peremptory challenges through
which he or she could have eliminated more
members of the allegedly targeted group,
apparent non-discriminatory reasons for
striking potential jurors based on their voir
dire answers, and whether similarly situated

-14-
 jurors from outside the allegedly targeted
group were permitted to serve . . . .

Aspen, 480 F.3d at 577 (internal citations omitted). "We follow

this approach of looking at all relevant circumstances even in

cases where we are reviewing a district court's finding that no

prima facie case has been made." Girouard, 521 F.3d at 115-16.

3. Analysis

We consider below both the proper standard / scope of

review to employ in this matter, as well as Charlton's specific

Batson challenge.

a. Standard / Scope of Review

Charlton contends that we should review his Batson

challenge to the striking of Juror No. 23 for clear error. The

government suggests, rather, that we should review Charlton's

challenge for plain error. The government supports its argument by

observing that Charlton did not renew his challenge when the

purported purposeful discrimination became apparent: after the

government withdrew its strike of Juror No. 37,6 and then exercised

a peremptory challenge against Juror No. 43. We need not take a

position on this matter, as we find that the district court

committed no error -- clear or plain -- in denying Charlton's

Batson challenge.

6
In its appellate brief, the government refers to "juror number
23" as the prospective juror against which the government withdrew
a peremptory challenge. Appellee's Br. at 18. However, it is
clear that the government meant Juror No. 37.

-15-
 b. Charlton's Specific Batson Challenge

Charlton focuses his Batson claim on the government's

exercise of a peremptory challenge against Juror No. 23. At trial,

Charlton objected to the striking of Juror No. 23 on Batson

grounds. As discussed below, Charlton has relied entirely on the

number of prosecution strikes against African-Americans. As we

have previously held, "[i]t is at least questionable whether this

evidence is adequate to surpass the prima facie hurdle." Aspen,

480 F.3d at 577 (citing United States v. Esparsen, 930 F.2d 1461,

1467 (10th Cir. 1991) ("By itself, the number of challenges used

against members of a particular [group] is not sufficient to

establish . . . a prima facie case.")) (alteration in original).

But even assuming that Charlton could establish a prima facie case,

it is clear that he cannot ultimately establish a Batson violation.

Charlton concedes in his appellate brief that the reason

the government offered at trial -- that Juror No. 23 is "an

attorney, and I do not want an attorney on the jury" -- "is a

sufficient race-neutral explanation for the challenge and, standing

alone, would vitiate his argument." Charlton contends, however,

that the totality of the circumstances indicates that "a purpose to

eliminate or minimize an African-American presence on the jury can

be gleaned, and accordingly Charlton's rights were violated."

To support his totality-of-the-circumstances argument,

Charlton points to several developments throughout the process of

-16-
voir dire. First, Charlton emphasizes that the government

exercised "only one" peremptory challenge in the second round in

which the district court called prospective jurors when it struck

Juror No. 37, the sole newly called African-American. Second,

Charlton points to the fact that the jury that was ultimately

empaneled included two African-Americans, "one of whom[, Juror No.

37,] was seated only because the prosecutor withdrew his peremptory

challenge in the face of a Batson challenge." Finally, Charlton

notes that the government attempted to exercise three, or fifty

percent, of its six peremptory challenges on African-Americans:

Juror No. 23, Juror No. 37, and Juror No. 43. Charlton contends

that, although the government withdrew its peremptory challenge

against Juror No. 37, "the government's use of half of its

challenges to rid, or attempt to rid[,] the jury of three (3) of

the four (4) African-Americans who were seated casts a pall over

the selection process that amounts to discrimination and undercuts

the prosecutor's stated reason for challenging Juror No. 23."

i. Relevant Numeric Evidence

Charlton's argument is unavailing given our consultation

of all of the circumstances that bear upon the issue of racial

animosity. Although on appeal Charlton focuses his Batson claim on

the government's exercise of a peremptory challenge against Juror

No. 23, our totality-of-the-circumstances analysis will also

-17-
evaluate the government's treatment of other prospective jurors.

We begin by considering the relevant numeric evidence.

First, Charlton correctly notes that fifty percent of the

government's strikes were directed against members of a particular

group, African-Americans. Second, if we take the most conservative

estimate of African-Americans in the jury pool, seven, these

strikes resulted in three out of seven, or forty-three percent, of

a particular group, African-Americans, being removed from the

venire. Since only one of these strikes -- against Juror No. 23 --

is directly challenged on appeal, the percentage of a particular

group, African-Americans, being removed from the venire by the

challenged strike is one out of seven, or fourteen percent.

Third, if we compare the percentage of a group's

representation in the venire to its representation on the jury, we

find the two percentages to be similar. Again adopting the

conservative estimate of African-Americans in the jury pool, we

find that African-Americans comprised seven out of fifty-five, or

thirteen percent, of the venire, and they comprised two out of

twelve, or seventeen percent, of the jury that was ultimately

empaneled. The proportion of African-Americans on the empaneled

jury was thus actually slightly higher than in the venire.

In submitting this Batson claim concerning Juror No. 23,

Charlton appeals to "just numbers alone," precisely what we have

cautioned against. See Girouard, 521 F.3d at 116 (citation

-18-
omitted). The government's use of half of its statutorily

permitted peremptory challenges to rid, or attempt to rid, the jury

of three of the four African-Americans who were seated does not

necessarily amount to racial discrimination and does not

necessarily undercut the government's stated reason for challenging

Juror No. 23.

ii. Relevant Non-Numeric Evidence

This finding is further supported by the relevant non-

numeric evidence. First, the government did not ask any questions

or make any statements during voir dire that suggested it was

operating with racial animosity towards African-Americans.

Second, by the end of voir dire for the prospective

jurors, the government had two unused peremptory challenges through

which it could have eliminated more members of the allegedly

targeted group of African-Americans. One African-American was

seated in the first round of voir dire and the government did not

strike or attempt to strike that person at any point during voir

dire. As other circuits have found, this circumstance suggests

that the government was not exercising its peremptory challenges in

a racially discriminatory manner. See, e.g., King v. Moore, 196

F.3d 1327, 1335 (11th Cir. 1999) (rejecting a prospective African-

American juror "after accepting another black venireperson . . .

[indicates] not only was there no pattern of discriminatory

strikes, there was a sort of 'antipattern'"); United States v.

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Mixon, 977 F.2d 921, 923 (5th Cir. 1992) (in a situation in which

"[t]he government used five out of its six challenges against

blacks[, t]he one black accepted by the government weakens the

argument that the government was accepting jurors solely on a

racial basis").

Third, the government offered apparent non-discriminatory

reasons for striking potential jurors based on their voir dire

answers. The defense concedes on appeal that the explanations the

government provided were "race-neutral." The district court

accepted each explanation, either implicitly, by not soliciting an

explanation and not rejecting the peremptory challenge, or

explicitly, by soliciting an explanation and then not rejecting the

peremptory challenge. See Girouard, 521 F.3d at 115 (where defense

counsel objected on religious grounds to a peremptory challenge and

the district court refused to ask the prosecutor for a race-neutral

explanation, we interpreted the district court's action "as an

implicit rejection of [the defendant's] prima facie case of a

Batson violation"). The government stated it struck Juror No. 23

because the prospective juror was an attorney. Other courts have

not only permitted such peremptory challenges, but have, sua

sponte, declared their obviousness. For example, a district court

in the District of Massachusetts, without asking the prosecution to

justify a strike against a prospective juror who was an attorney,

stated, "[O]ne can think of many reasons why we wouldn't want an

-20-
attorney on a criminal case." Id. at 114. The government stated

it attempted to strike Juror No. 37 because the prospective juror

was a member of the clergy. Other courts have permitted such

peremptory challenges. For example, the U.S. Court of Appeals for

the Fifth Circuit found to be race-neutral the government's

peremptory challenge of an African-American prospective juror who

indicated that she and her husband were ordained ministers and the

government inferred that she might have a higher threshold of

reasonable doubt. Mixon, 977 F.3d at 923. The government stated

it struck Juror No. 43 because the prospective juror had a son in

prison for a crime similar to the one charged against Charlton:

possession of a firearm. The defense did not object to the

peremptory challenge against Juror No. 43 at the time but cites the

strike on appeal as part of the totality of the circumstances that

indicate that the government intended "to eliminate or minimize an

African-American presence on the jury." However, other circuits

have upheld similar juror dismissals. See, e.g., United States v.

Hendrix, 509 F.3d 362, 370 (7th Cir. 2007) (finding "a valid and

race-neutral basis for the strikes" where prosecution exercised

peremptory challenges against three jurors, all of whom had

relatives in prison); United States v. Crawford, 413 F.3d 873, 875

(8th Cir. 2005) ("There is no Batson violation when a juror is

dismissed because the juror's relatives have been prosecuted or

convicted of a crime . . . .").

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 Finally, there is no evidence in the record that

similarly situated jurors (attorneys, members of clergy, or

relatives of convicts) from outside the allegedly targeted group of

African-Americans were permitted to serve. In fact, the government

was consistent when, according to the trial transcript, the only

other similarly situated prospective juror, Juror No. 47, who

stated she had a relative in jail for possession of a firearm, was

considered as an alternate juror. As with Juror No. 43, the

government exercised a peremptory challenge against this

prospective (alternate) juror, offering the same explanation in the

process, notwithstanding that Juror No. 47 was not African-

American.

Having consulted all of the circumstances that bear upon

the issue of racial animosity, we conclude that Charlton failed to

establish that the government purposely discriminated against

African-Americans in exercising its peremptory challenge against

Juror No. 23 and thus the district court committed no error --

clear or plain -- in permitting the government's peremptory

challenge against that prospective juror. Furthermore, we are not

left with the definite and firm conviction that the district court

made a mistake in deciding that Charlton failed to prove that the

strike constituted purposeful discrimination on the basis of race.

We have not determined an inherent discriminatory intent in the

government's explanation for striking Juror No. 23, and so deem the

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reason offered -- that she was an attorney and the government did

not want an attorney on the jury -- to be race-neutral. Thus,

contrary to Charlton's contention, we glean no purpose by the

government to eliminate or minimize an African-American presence on

the jury.

B. Predicate Convictions

Charlton was convicted of being a felon in possession of

a firearm under 18 U.S.C. § 922(g)(1) and subsequently sentenced

under the provisions of the ACCA. On appeal, Charlton argues that

his Sixth Amendment right to trial by jury was violated because the

government did not plead or prove beyond a reasonable doubt the

requisite predicate convictions, nor did Charlton admit to those

convictions. Consequently, Charlton states, his sentence must be

vacated and the matter remanded for resentencing. "We have

consistently rejected this argument in light of Supreme Court

precedent." United States v. LaFortune, 520 F.3d 50, 58 (1st Cir.

2008). As discussed below, because of the Supreme Court's and our

own precedent on this matter, we must uphold Charlton's sentence.

See Richards, 456 F.3d at 262.

On appeal, Charlton acknowledges that we have

characterized as "hopeless" claims

that the Fifth and Sixth Amendments precluded
the district court from classifying
[appellant] as an armed career criminal
because (i) the indictment did not charge him
as an armed career criminal and (ii)
[appellant] did not admit -- nor did a jury

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 find -- that [appellant's] prior crimes
qualified as predicate offenses under the
ACCA.

Id. Charlton's characterization is accurate. "[A] sentencing

enhancement may be grounded on prior criminal convictions neither

separately charged nor proven to a jury." Id. (citing Almendárez-

Torres, 523 U.S. at 226-27). "[T]his court normally is bound by a

Supreme Court precedent unless and until the Court itself disavows

that precedent. For that reason, we recently have rejected a

parade of similarly sculpted challenges to the continuing vitality

of Almendárez-Torres [in the context of the ACCA]. We reiterate

those holdings today." Id. (internal citations omitted).

We conclude that the district court did not err in

sentencing Charlton as an armed career criminal.

III. Conclusion

We find no error in the district court's granting of the

government's peremptory strike against Juror No. 23. We are bound

by precedent in rejecting Charlton's ACCA claim. Charlton's

conviction and the district court's sentence are thus both

affirmed.

Affirmed.

"Concurring opinion follows"

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 LYNCH, Chief Judge, concurring. Sometimes the whole can

be greater than the sum of the parts, including in Batson cases.

I write separately to emphasize that the defendant's underlying

theory is sound, though little help to him here. Even if the

prosecution offers facially neutral reasons for striking individual

members of protected groups at the time of the strike, if those

strikes together later create a concern that certain groups are

underrepresented, it may well make sense for a trial judge to take

a second look at the exclusions.

Batson and its progeny are not ultimately about

statistical disparities or disparate impact; they are about animus.

See Snyder v. Louisiana, 552 U.S. 472, 478 (2008). Determining

when a party acted with discriminatory purpose when exercising its

peremptory challenges with is never easy and is not well suited for

bright-line rules. See Miller-El v. Dretke, 545 U.S. 231, 238-40

(2005). The Supreme Court's recent jurisprudence reminds courts to

consider "all of the circumstances that bear upon the issue of

racial animosity." Snyder, 552 U.S. at 478; see also Miller-El,

545 U.S. at 240 ("If any facially neutral reason sufficed to answer

a Batson challenge, then Batson would not amount to much more than

Swain. Some stated reasons are false, and although some false

reasons are shown up within the four corners of a given case,

sometimes a court may not be sure unless it looks beyond the case

at hand.").

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 But objections based solely on numerical effects are

inherently problematic. Although courts may consider statistics as

evidence of discrimination, Miller-El, 545 U.S. at 240-41, the

Supreme Court has not accepted the proposition that a showing of

disparate impact alone meets the Batson requirement, see Hernandez

v. New York, 500 U.S. 352, 362 (1991) (plurality opinion) ("An

argument relating to the impact of a classification does not alone

show its purpose.").

Relying only on statistics to uncover discriminatory

intent can be over- or underinclusive. Prosecutors often exercise

peremptories against a series of minority jurors for valid,

nondiscriminatory reasons. And no matter how many or how few

minority jurors the government strikes, "[t]he Constitution forbids

striking even a single prospective juror for a discriminatory

purpose." Snyder, 552 U.S. at 478 (quoting United States v.

Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

Frequently in life, later, related events have

explanatory power as to what happened earlier. Thus an explanation

for a strike that seems minimally adequate at the time may look

more suspect in light of later challenges. The cumulative impact

of a series of peremptories is one of many facts courts can

consider when interpreting a prosecutor's motives.

Here, the defendant has no more than numbers, as Judge

Torruella's opinion clearly explains. The other facts do not show

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that the government acted with animus. The government exercised

two peremptories to which Charlton objects, first against an

attorney and then, initially, against a clergymember. In the end,

the prosecution decided, after it looked at the assembled jurors,

not to strike Juror No. 37 (the clergymember), which removed any

suspicion of a Batson violation from the case. While the

defendant's case has been ably argued, there was no error.

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