United States v. Mickens

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10347 JAN 07, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 1:08-cr-00404-RWS-GGB-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll Plaintiff-Appellee,

versus

CHRISTOPHER MICKENS,

lllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(January 7, 2011)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Christopher Mickens appeals his convictions and 300-month total sentence for

possession with intent to distribute 50 or more grams of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) and 851 (“Count One”); possession with

intent to distribute 500 or more grams of cocaine, in violation of §§ 841(a)(1),

841(b)(1)(A)(ii) and 851 (“Count Two”); possession of a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (“Count Three”); and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)

(“Count Four”). On appeal, Mickens argues that the district court (1) erroneously

denied his challenge, pursuant to J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994),

to the government’s allegedly gender-conscious peremptory strikes; (2) abused its

discretion in admitting his prior drug convictions as Fed.R.Evid. 404(b) evidence and

denying his motion to sever the firearm-possession count; and (3) violated his equal

protection rights by imposing a mandatory-minimum sentence of 20 years’

imprisonment because the sentencing disparity between cocaine base and cocaine

powder offenses is racially discriminatory. After careful review, we affirm.

We review for clear error a trial judge’s finding that a prosecutor has exercised

peremptory strikes free of discriminatory intent. United States v. Alston, 895 F.2d

1362, 1366 (11th Cir. 1990). “For a factual finding to be clearly erroneous, [we],

after reviewing all of the evidence, must be left with a definite and firm conviction

that a mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d

1134, 1137 (11th Cir. 2004) (internal quotations omitted). The trial judge’s

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assessment of the prosecutor’s credibility is entitled to “great deference.” Batson v.

Kentucky, 476 U.S. 79, 98 n.21 (1986). When a party properly preserves its claim,

we review the district court’s rulings on admission of evidence for abuse of

discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000). We will

reverse an erroneous evidentiary ruling “only if the resulting error was not harmless.”

United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.), corrected by 194 F.3d 1186

(11th Cir. 1999). An error is harmless unless “there is a reasonable likelihood that

[it] affected the defendant’s substantial rights.” Id. (citation omitted). We determine

whether an error had substantial influence on the outcome by weighing the record as

a whole, United States v. Montalvo-Murillo, 495 U.S. 711, 722 (1990), and

examining “the facts, the trial context of the error, and the prejudice created thereby

as juxtaposed against the strength of the evidence of defendant’s guilt[,]” United

States v. Reed, 700 F.2d 638, 646 (11th Cir. 1983) (quotation omitted). The denial

of a motion for severance under Fed.R.Crim.P. 14(a) is also reviewed for abuse of

discretion. United States v. Wilson, 894 F.2d 1245, 1253 (11th Cir. 1990). We

review questions of constitutional law de novo. United States v. Paige, 604 F.3d

1268, 1274 (11th Cir. 2010).

First, we reject Mickens argument that the government’s articulated reasons for

striking five women with its six peremptory strikes were pretextual, that the

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government failed to strike similarly situated men from the jury, and that the

government exercised its peremptory strikes in a gender-discriminatory manner.

Peremptory strikes generally may be exercised on any “legitimate” ground, even if

the ground is not reasonable, so long as it does not deny equal protection. United

States v. Tokars, 95 F.3d 1520, 1533 (11th Cir. 1996). However, a defendant may

challenge the government’s exercise of peremptory strikes where they reveal a pattern

of purposeful racial or gender discrimination in the selection of the jury. Batson, 476

U.S. at 96-97 (involving race-conscious peremptory challenges); J.E.B., 511 U.S. at

146 (extending Batson to gender-conscious challenges).

We use a burden-shifting approach when evaluating Batson challenges.

Tokars, 95 F.3d at 1533. When challenging the government’s exercise of peremptory

strikes, the defendant must first establish a prima facie case with sufficient evidence

to permit the trial judge, based on all relevant circumstances, to draw an inference

that discrimination has occurred. Id. Once the prima facie case is established, the

government may rebut the inference by articulating legitimate, gender-neutral reasons

for its exercise of peremptory strikes. Id. After the government articulates such

reasons, the court must evaluate the credibility of the stated justifications based on

the evidence placed before it. Batson, 476 U.S. at 98 & n.21. Once the prosecution

has offered to the court legitimate and non-discriminatory reasons for exercising its

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strikes, the defendant bears the burden of demonstrating that the prosecution’s stated

reasons are pretextual. Tokars, 95 F.3d at 1533.

A prosecutor’s proffered gender-neutral reasons may be pretextual if the reason

or explanation is equally applicable to jurors of a different gender who have not been

stricken. See United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2009)

(applying burden-shifting approach to claim based on racial discrimination). A

prosecutor’s failure to strike similarly situated jurors is not pretextual, however,

where there are “relevant differences” between the struck jurors and the empaneled

jurors. United States v. Novaton, 271 F.3d 968, 1004 (11th Cir. 2001). We may

assume that the defendant properly made out a prima facie case when the district

court required the prosecution to offer race-neutral or gender-neutral reasons for its

strikes. Edouard, 485 F.3d at 1342-43 (citation omitted).

Here, Mickens has not shown that the district court clearly erred in denying his

J.E.B. challenge. The government met its burden of articulating gender-neutral

reasons for its challenged strikes -- to wit, visiting a relative or close friend in jail,

having relatives who had been arrested, demeanor, and work experience as a

hypnobirther -- and Mickens has not satisfied his burden of showing that these

reasons were pretextual. The district court is entitled to deference in how it weighed

the government’s credibility, and we will not disturb that determination here.

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 Next, we find no merit in Mickens’s claims that the government sought to

admit his convictions for propensity purposes, and that the district court’s limiting

instructions regarding the proper consideration of this evidence did not overcome the

resulting prejudice, or, in the alternative, that the district court abused its discretion

by failing to sever the counts. Rule 404(b) of the Federal Rules of Evidence provides

that “[e]vidence of other crimes, wrongs, or acts” is admissible for purposes other

than to “show action in conformity therewith.” Fed.R.Evid. 404(b). Other purposes

for which evidence can be admitted under this rule include proof of motive, intent,

and knowledge, among other listed permissible purposes. Id.

“To be admissible, 404(b) evidence must (1) be relevant to one of the

enumerated issues and not to the defendant’s character; (2) the prior act must be

proved sufficiently to permit a jury determination that the defendant committed the

act; and (3) the evidence’s probative value cannot be substantially outweighed by its

undue prejudice” in accordance with Fed.R.Evid. 403. United States v. Chavez, 204

F.3d 1305, 1317 (11th Cir. 2000). In determining whether the evidence is more

probative than prejudicial, a district court must engage in a “common-sense

assessment of all of the circumstances” of the prior evidence, including “prosecutorial

need, overall similarity” between the prior evidence and the instant case, and

“temporal remoteness.” United States v. Brown, 587 F.3d 1082, 1091 (11th Cir.

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2009) (citations omitted). Prior convictions for drug-trafficking offenses are

considered “highly probative of intent to commit current drug trafficking offenses.”

See id. (citations omitted). The government sufficiently proves a prior act for

purposes of the second prong of the test when the extrinsic act involves a conviction.

United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). The district court’s

giving of a limiting instruction to the jury is a factor in weighing the unfair prejudice

to a defendant. United States v. Duran, 596 F.3d 1283, 1298 (11th Cir. 2010). By

entering a not guilty plea, a defendant makes intent a material issue. Edouard, 485

F.3d at 1345 (citation omitted).

Pursuant to Rule 8(a) of the Federal Rules of Criminal Procedure, an

indictment may charge a defendant jointly with multiple offenses if the charged

offenses “are of the same or similar character,” involve the same “act or transaction,”

or are connected to a “common scheme or plan.” Fed.R.Crim.P. 8(a). Under Rule

14(a), a defendant may move for severance if the joinder of offenses would be

prejudicial. Fed.R.Crim.P. 14(a). In determining whether severance of charges under

Rule 14(a) is proper, we look at the relation in “time, place, and evidence” of the

charges. United States v. Gardiner, 955 F.2d 1492, 1496-97 (11th Cir. 1992)

(citations omitted). A defendant seeking severance under Rule 14 must demonstrate

“compelling” prejudice. See id. at 1497 (holding that the defendant had not

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demonstrated “compelling” prejudice from the district court’s failure to sever counts).

Rule 14(a) requires “a [district] court to balance the rights of the defendant[] and the

government to a trial that is free from the prejudice” against the public interest in

judicial economy. Novaton, 271 F.3d at 989 (quotation omitted) (reviewing the

denial of a codefendant severance motion).

Mickens has not shown that the district court abused its discretion in admitting

the prior drug convictions under Rule 404(b), as the convictions were relevant to

show intent, an element of Counts One and Two that the government needed to prove

beyond a reasonable doubt. He has also not shown that the district court abused its

discretion in denying his motion to sever Count Four. All of the counts involved the

same operative facts and were sufficiently related, and Mickens cannot show

“compelling prejudice” from the failure to sever the charges.

Finally, we are unpersuaded by Mickens’s argument that there is no rational

basis for the disparity in sentencing between crack cocaine and powder cocaine, and

that the Fair Sentencing Act (“FSA”) should apply to his case. The sentencing

scheme punishing offenses involving cocaine base 100 times higher than offenses

involving powder cocaine has a rational basis and does not violate equal protection,

even though the penalties have a disparate impact on African-Americans. United

States v. King, 972 F.2d 1259, 1259-60 (11th Cir. 1992). Under the prior precedent

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rule, we are “bound to follow a prior binding precedent unless and until it is overruled

by this [C]ourt en banc or by the Supreme Court.” United States v. Vega-Castillo,

540 F.3d 1235, 1236 (11th Cir. 2008) (citation and internal quotations omitted).

Section 109 of Title 1, United States Code, provides that a statute’s repeal has

no effect on liability incurred under the statute unless the repealing Act expressly

provides. Thus, we have held that Section 109 bars the application of the FSA to a

defendant’s sentence when the defendant committed his crimes before the August

2010 effective date of the FSA. United States v. Gomes, 621 F.3d 1343, 1346 (11th

Cir. 2010).

Mickens has not shown that the district court’s application of a mandatory

minimum for Count One violated his equal protection rights. We held in King the

mandatory minimum, as well as the crack cocaine sentencing scheme, constitutional

against an equal protection challenge, 972 F.2d at 1259-60, and we are bound to

follow King under the prior precedent rule because it has not been overruled by this

Court or by the Supreme Court. Vega-Castillo, 540 F.3d at 1236. Also, because

Mickens committed his crimes in 2008, well before the August 2010 effective date

of the FSA, § 109 bars the application of the FSA to his sentence. Gomes, 621 F.3d

at 1346.

AFFIRMED.

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