United States v. Joseph Clinton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4117

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JOSEPH ALEXANDER CLINTON,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00208-RJC-DSC-1)

Submitted: November 22, 2013 Decided: November 27, 2013

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Joseph Alexander Clinton was convicted by a jury of

conspiracy to obstruct, delay, and affect commerce in violation

of 18 U.S.C. § 1951 (2012) (Count 1); obstruct, delay, and

affect commerce and aiding and abetting the same in violation of

§ 1951 and 18 U.S.C. § 2 (2012) (Count 2); and use, carry, and

discharge of firearm in furtherance of a crime of violence and

aiding and abetting the same in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii) (2012) & § 2 (Count 3). Clinton’s

convictions were based on his participation in the robbery of a

store and his and his co-conspirators flight from police.

Clinton was sentenced to sixty-month concurrent sentences for

Counts 1 and 2 and a ten-year consecutive sentence for the

firearm violation in Count 3, because the court found at

sentencing that the firearm at issue was discharged.

On appeal, Clinton only challenges his 120-month

mandatory minimum consecutive sentence for his § 924(c)

violation. Clinton notes that he was only indicted for, and the

jury was only instructed on, whether he used or carried a

firearm. Thus, he argues, his conviction is now erroneous,

based on the Supreme Court’s later opinion in Alleyne v. United

States, 133 S. Ct. 2151 (2013). While Clinton concedes that the

facts at trial proved that the pistol at issue was brandished,

and, thus, his maximum sentence would be seven years under

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§ 924(c)(1)(A)(ii), he contends that his ten-year mandatory

sentence, under § 924(c)(1)(A)(iii), for discharging the firearm

was erroneous in light of Alleyne. For the reasons that follow,

we affirm.

Defense counsel understandably failed to object to

Clinton’s ten-year sentence on the basis of Alleyne, or a

related Sixth Amendment basis, as that opinion issued after

Clinton was sentenced. Because, however, there was no objection

made on this basis in the district court, Clinton raises the

issue for the first time on appeal and we review the claim for

plain error only. Fed. R. Crim. P. 52(b). The Supreme Court

has held that the plain error standard applies even in cases

where the relevant rule of law was not established until after

trial. See Johnson v. United States, 520 U.S. 461, 464 (1997).

An error in instructing the jury is harmless if it is “clear

beyond a reasonable doubt that a rational jury would have found

the defendant guilty absent the error.” Neder v. United States,

527 U.S. 1, 18 (1999).

To demonstrate plain error, an appellant must show

that (1) there was error, (2) the error was plain, (3) the error

affected his substantial rights, and (4) the error seriously

affected the fairness, integrity, or public reputation of the

judicial proceedings. Johnson, 520 U.S. at 464-66 (citing

United States v. Olano, 507 U.S. 725, 732 (1993)). This Court

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has held that a defendant who failed to preserve his objection

to a flawed instruction “must demonstrate that the erroneous

instruction given resulted in his conviction, not merely that it

was impossible to tell under which prong the jury convicted.”

United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010)

(quotation marks and alterations omitted).

In Alleyne, the Supreme Court held that any fact that

increases the statutory mandatory minimum sentence is an element

of the offense and must be submitted to the jury and found

beyond a reasonable doubt. 133 S. Ct. at 2155. The Alleyne

Court overruled Harris v. United States, 536 U.S. 545 (2002),

which “held that judicial factfinding that increases the

mandatory minimum sentence for a crime is permissible under the

Sixth Amendment.” Alleyne, 133 S. Ct. at 2155. Pursuant to

Alleyne, “any fact that increases the mandatory minimum

[sentence] is an ‘element’ that must be submitted to the jury.”

Id. The Alleyne opinion found that the trial court erred when

it imposed a seven-year mandatory minimum sentence on a § 924(c)

conviction, because the jury had not found the facts supporting

the mandatory minimum beyond a reasonable doubt. Alleyne, 133

S. Ct. at 2156-58. In overruling Harris, the Supreme Court

explained that mandatory minimum sentences increase the penalty

for a crime, and that the facts used to enhance the sentence are

offense elements that “must be submitted to the jury and found

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beyond a reasonable doubt,” before an enhanced mandatory minimum

sentence can be imposed. Alleyne, 133 S. Ct. at 2158.

Here, the jury was only instructed to determine

whether Clinton used, carried, or possessed the firearm that was

used in the robbery. We find the error was not plain, however,

because the overwhelming evidence revealed that the weapon was

also discharged at a police officer as the co-conspirators fled.

Thus, we have no difficulty finding the error in instructing the

jury harmless because it is clear beyond a reasonable doubt that

a rational jury would have found the defendant guilty absent the

error. Neder, 527 U.S. at 18.

Accordingly, we affirm Clinton’s ten-year sentence for

his § 924(c) violation. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the

decisional process.

AFFIRMED