Case: 13-15517 Date Filed: 07/15/2014 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15517
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00284-RWS-JFK-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAHKEEM BUTLER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 15, 2014)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
PER CURIAM:
After a guilty plea, Rahkeem Butler appeals his seven-year prison sentence
on Count 3 for brandishing a firearm during a crime of violence, which was
Case: 13-15517 Date Filed: 07/15/2014 Page: 2 of 11
imposed consecutively to his three-year prison sentence on Count 1. Butler does
not challenge his three-year sentence on Count 1 for conspiracy to commit an
armed robbery under the Hobbs Act. After careful review of the record as to the
Count 3 sentence, we affirm.
I. BACKGROUND
A. September 12, 2012 Indictment
On September 12, 2012, a grand jury indicted Butler with one count of
conspiracy to commit an armed robbery under the Hobbs Act, in violation of 18
U.S.C. § 1951(a) (Count 1) and one count of violating “Title 18, United States
Code, Section 924(c)(1)(A) and Section 2” (Count 3). As to Count 3, the
indictment alleged that Butler “did use and carry a firearm during and in relation to
a crime of violence, that is, conspiracy to interfere with commerce by robbery.”
Count 3 did not, however, allege that Butler “brandished” the firearm.
As to Count 3, the penalty for a violation of § 924(c)(1)(A) is a mandatory
minimum sentence of five years’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(i). But
if the firearm is brandished, the mandatory minimum penalty is increased to seven
years’ imprisonment. Id. § 924(c)(1)(A)(ii). As explained below, Butler admitted
that he brandished a firearm, and thus, the district court imposed the seven-year
mandatory minimum sentence on Count 3.
B. December 11, 2012 Plea Colloquy
2
Case: 13-15517 Date Filed: 07/15/2014 Page: 3 of 11
On December 11, 2012, Butler pled guilty to Counts 1 and 3 without
entering into a plea agreement with the government. At that time, Butler was
twenty-three years’ old and had attended two years of college.
At the plea colloquy, the district court advised Butler of his right to a trial on
the charges against him and asked him if he was “willing to give up that right.”
Butler confirmed that he understood that he had a right to a trial and was waiving
that right by pleading guilty. The government, at the district court’s direction,
stated the elements of the offenses to which Butler was pleading guilty. As to
Count 3 in particular, the government stated that the elements were “first, that Mr.
Butler committed the crime of violence, as charged, in Count One; secondly, that
during and in relation to that crime, he used or carried a firearm, as charged; and
third, that he knowingly brandished that firearm during the commission of the
crime.” The district court asked Butler if he understood the matters the
government would have to prove to convict him, and Butler replied that he did.
The government stated that, if the case proceeded to trial, the evidence
would show, inter alia, that: (1) Butler and a codefendant “entered the bank
brandishing handguns”; (2) “one of the robbers jumped the teller counter and
began demanding money from the tellers”; (3) “[t]he second robber . . . while
displaying the gun, ordered one of the employees to take him to the bank vault”;
and (4) the “robbers ma[de] statements along the lines of, don’t make me shoot
3
Case: 13-15517 Date Filed: 07/15/2014 Page: 4 of 11
you.” The district court asked Butler whether he admitted the facts as stated by the
government, and Butler stated that he did. The court then specifically asked
Butler, “So you admit you . . . brandished a firearm during the robbery?” Butler
confirmed that he “brandished” a firearm during the robbery.
Next, the government set forth the potential penalties Butler faced, including
that Count 3 had “a mandatory minimum term of imprisonment of seven years to
be served consecutively to any guideline sentence imposed in the case.” The
district court asked Butler if he understood the potential penalties, and Butler
replied that he did. The court then asked Butler, “And you understand the Count
Three charge is a mandatory consecutive seven years; that is, that will be added to
any time you’re given on . . . Count One.” Butler replied that he understood. The
district court asked Butler whether there was anything previously discussed that
Butler did not “fully understand,” and Butler stated that there was not. The court
also asked Butler’s counsel if he was aware of any reason it should not accept the
plea, and Butler’s counsel stated that he was not.
The district court found that Butler was competent and understood the
charges and the consequences of his plea, the plea had a factual basis, and the plea
was voluntarily made. The court accepted Butler’s guilty plea as to Counts 1 and
3.
C. Initial and Revised Presentence Investigation Reports
4
Case: 13-15517 Date Filed: 07/15/2014 Page: 5 of 11
The initial presentence investigation report (“PSI”), dated August 28, 2013,
stated that Butler had an advisory guidelines range of 46 to 57 months’
imprisonment as to Count 1 based on a total offense level of 22 and a criminal
history category of II. The initial PSI also stated that Count 3 had a five-year
mandatory minimum prison sentence, to run consecutively to Count 1’s sentence.
The government objected to the PSI’s statement that Count 3 had a five-year
mandatory minimum sentence, arguing that a seven-year mandatory minimum
applied, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), as Butler pled guilty to
brandishing a firearm.
The probation officer agreed with the government and, on November 7,
2013, issued an amended PSI to reflect that Count 3 had a seven-year mandatory
minimum sentence. Butler’s guideline range of 46 to 57 months’ imprisonment for
Count 1 remained unchanged.
D. November 14, 2013 Sentencing Memorandum
In a sentencing memorandum filed on November 14, 2013, Butler argued
that, in the absence of a written plea agreement stipulating that he brandished a
firearm, or a jury finding as to that issue, it would be a miscarriage of justice for
the district court to apply a seven-year mandatory minimum sentence on Count 3,
especially where the parties had originally agreed upon the initial PSI’s contents.
Butler argued that applying the seven-year mandatory minimum sentence would
5
Case: 13-15517 Date Filed: 07/15/2014 Page: 6 of 11
violate Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013) (concluding
that “[a]ny fact that increases the mandatory minimum sentence is an ‘element’
that must be submitted to the jury”). Butler also argued that, at the time he pled
guilty, he did not understand the “brandishing” element, as the district court did not
define that element.
E. November 21, 2013 Sentencing Hearing
At sentencing on November 21, 2013, Butler, through counsel, argued that,
because the indictment alleged that he used and carried a firearm, but did not allege
“brandishing,” as required to trigger the enhanced § 924(c)(1)(A) penalty, Count
3’s mandatory minimum was five years’ imprisonment, not seven years. Butler
contended that he lacked sufficient notice that a mandatory minimum penalty of
seven years would apply as to Count 3. He also argued that the facts proffered by
the government did not establish that he brandished a firearm.
The district court found that, at the plea colloquy, Butler understood that
Count 3 had a mandatory minimum consecutive sentence of seven years, as he was
advised of that penalty. The district court found that Butler was on notice of “what
the Government was contending and . . . of what the penalties were.” The district
court also noted that it had “actually had [Butler] admit brandishing specifically”
during the earlier plea colloquy. The district court overruled Butler’s Alleyne-
based objection to the revised PSI and thus implicitly rejected Butler’s claim—that
6
Case: 13-15517 Date Filed: 07/15/2014 Page: 7 of 11
he had not understood the “brandishing” element. The district court adopted the
final version of the PSI, which stated that a seven-year mandatory minimum prison
sentence applied on Count 3.
The district court sentenced Butler to 36 months’ imprisonment on Count 1
and to the mandatory minimum of 84 months’ imprisonment (i.e., 7 years) on
Count 3. Butler’s total sentence was 120 months’ imprisonment. Butler now
appeals.
II. DISCUSSION1
A. Facts that Increase the Mandatory Minimum
As noted above, a defendant has a five-year mandatory minimum sentence if
he uses or carries a firearm during and in relation to a crime of violence (in this
case, conspiracy to commit armed robbery). 18 U.S.C. § 924(c)(1)(A)(i).
However, if the defendant brandishes the firearm during the commission of the
crime, the mandatory minimum sentence is increased to seven years. Id.
§ 924(c)(1)(A)(ii). As § 924 explains, brandishing a firearm means “to display all
or part of the firearm, or otherwise make the presence of the firearm known to
another person, in order to intimidate that person, regardless of whether the firearm
is directly visible to that person.” Id. § 924(c)(4).
1
We review preserved claims under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000) (and therefore, Alleyne), de novo, but reverse only for harmful error. See United
States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002).
7
Case: 13-15517 Date Filed: 07/15/2014 Page: 8 of 11
In Apprendi v. New Jersey, the Supreme Court held that, under the
Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s right to
a trial by jury, that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490,
120 S. Ct. 2348, 2362-63 (2000). In United States v. Cotton, the Court declared
that, “[i]n federal prosecutions, such facts must also be charged in the indictment.”
535 U.S. 625, 627, 122 S. Ct. 1781, 1783 (2002).
Subsequently, in Alleyne v. United States, the Supreme Court held that the
Sixth Amendment requires that any fact that increases the mandatory statutory
minimum penalty, such as the brandishing of a firearm under 18 U.S.C.
§ 924(c)(1)(A)(ii), is an “element” that must be submitted to the jury. 133 S. Ct. at
2155-56, 2162-64.
As United States v.Booker clarifies, however, the Sixth Amendment is not
violated where such a fact is either submitted to the jury or “admitted by the
defendant.” 543 U.S. 220, 228, 125 S. Ct. 738, 746-47 (2005) (stating that “the
statutory maximum for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant” (quotation marks omitted)); see United States v. Steed, 548 F.3d
961, 978-79 (11th Cir. 2008) (noting that the Supreme Court in Booker reaffirming
8
Case: 13-15517 Date Filed: 07/15/2014 Page: 9 of 11
its holding in Apprendi, that “[a]ny fact . . . which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt” (quotation marks omitted)).
B. Butler’s Sentence on Count 3
Here, Butler argues that his sentence on Count 3 must be vacated under
Apprendi and Alleyne because the brandishing-of-a-firearm element was not
charged in the indictment and submitted to the jury. A threshold issue is whether,
by pleading guilty and admitting to brandishing a firearm, Butler waived any
defects in the indictment or any argument about submission of the “brandishing”
fact to the jury. See United States v. Sanchez, 269 F.3d 1250, 1271 & n.40 (11th
Cir. 2001) (en banc); United States v. Walker, 228 F.3d 1276, 1278 n.1 (11th Cir.
2000). We need not resolve or rely on this waiver issue, however, because (1) any
error in the indictment was harmless, and (2) the district court did not err in
sentencing Butler to the enhanced mandatory minimum penalty, in light of his
admission to brandishing the firearm.
As to the omission in the indictment, we note that, at his plea colloquy,
Butler (1) was advised of the elements of a § 924(c)(1)(A)(ii) offense, including
the brandishing element, (2) was advised of the seven-year mandatory minimum
that applied under that statutory provision, (3) admitted that he possessed a
9
Case: 13-15517 Date Filed: 07/15/2014 Page: 10 of 11
handgun and brandished it during the robbery, and (4) stated that he understood
everything that was said at the plea colloquy. In light of these facts, there is
nothing to suggest that Butler was deprived of notice of the charges against him or
confused about the potential penalties of his offenses. And, as he pled guilty only
after being advised as to the seven-year mandatory minimum penalty, there is no
basis to find that Butler would have changed his plea if the indictment had charged
him with brandishing a firearm, in violation of § 924(c)(1)(A)(ii). 2 We therefore
conclude that any error in the indictment was harmless. See Fed. R. Crim. P. 52(a)
(stating that “[a]ny error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded”).
And, we conclude that no Apprendi and Alleyne error occurred based on the
issue of brandishing not being submitted to the jury because Apprendi and its
progeny require only that such a fact that increases a statutory mandatory
minimum be found by the jury or “admitted by the defendant.” Booker, 543 U.S.
at 228, 125 S. Ct. at 746-47.
We recognize that Butler claims that he did not understand what brandishing
means and should not be held to his admission that he brandished a firearm.
“[B]randishing” under § 924 includes “mak[ing] the presence of the firearm known
2
Indeed, Butler does not seek to withdraw his guilty plea, but rather argues that his
sentence on Count 3 must be vacated because he was subject to a mandatory minimum sentence
of only five years’ imprisonment, not an enhanced sentence of seven years for brandishing a
firearm.
10
Case: 13-15517 Date Filed: 07/15/2014 Page: 11 of 11
to another person, in order to intimidate that person, regardless of whether the
firearm is directly visible to that person.” 18 U.S.C. § 924(c)(4). Here, Butler
admitted facts that showed that he brandished a firearm, as he acknowledged that
he made statements to the bank employees along the lines of “don’t make me shoot
you.” This alone made the presence of the firearm known to the bank employees.
Butler also admitted that he and his codefendant “entered the bank brandishing
handguns.”3 Importantly too, Butler is educated, with two years of college
education. When the district court asked Butler if he understood everything
discussed, he stated that he did. Given the particular circumstances of this record,
we reject Butler’s argument that the district court clearly erred in finding that he
understood what it meant to brandish a firearm. 4
III. CONCLUSION
For all the foregoing reasons, we affirm Butler’s sentences.
AFFIRMED.
3
On appeal, Butler argues that he was not the “second robber” who ordered an employee
to take him to the vault while displaying his firearm, but he does not dispute that he and his
codefendant both stated, “don’t make me shoot you” and made similar statements.
4
See United States v. DePace, 120 F.3d 233, 236-37 (11th Cir. 1997) (reviewing the
district court’s implicit factual finding that the defendant understood the nature of the charges
against him for clear error). The district court made the fact finding explicitly at the plea
colloquy and implicitly at sentencing.
11