[DO NOT PUBLISH]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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