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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
______________________
No. 14-11585
______________________
D. C. Docket No. 8:12-cr-00550-MSS-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS RENALDO BOWERS,
a.k.a. Fat Cat Bowers,
a.k.a. Casino Bowers,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
____________________
(January 22, 2016)
Before TJOFLAT and HULL, Circuit Judges, and HALL, * District Judge.
* Honorable J. Randal Hall, United States District Judge for the Southern District of
Georgia, sitting by designation.
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HALL, District Judge:
This case principally concerns what inferences jurors may permissibly draw
from identity evidence from multiple crimes. A jury found Defendant-Appellant
Demetrius Bowers guilty of eight counts of armed robbery in violation of
18 U.S.C. § 1951(a) and eight counts of carrying, using, and brandishing a weapon
in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Bowers to
150 months for the § 1951(a) violations and to a mandatory 182 years for the
§ 924(c) violations, to run consecutively. On appeal, Bowers argues that the
district court erred in three ways: (1) by denying his motion to sever the charged
counts; (2) by denying his motion for judgment of acquittal based on insufficient
identity evidence; and (3) by applying § 924(c)’s mandatory sentencing provisions
in violation of the Constitution. After a thorough review of the case and with the
benefit of oral argument, we affirm.
I. BACKGROUND
A. The District Court Proceedings
On December 18, 2014, a grand jury charged Bowers with three counts of
robbery in violation of 18 U.S.C. § 1951(a) and three corresponding counts of
brandishing a weapon in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In its pre-trial
order, the district court ordered that all pre-trial motions be filed by January 14,
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2013. Besides an unopposed motion to continue the trial, Bowers did not file any
motions by that date.
Subsequently, on April 16, 2013, a grand jury returned a superseding
indictment charging Bowers with eight counts of armed robbery under
18 U.S.C § 1951(a) and eight counts of using, carrying, and brandishing a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). In light of
the superseding indictment, the district court reopened the period for pre-trial
motions and set a new deadline of May 1, 2013. Again Bowers did not file any
motions before the deadline. On June 5, 2013, Bowers filed a motion to sever the
sixteen counts into eight separate trials, one for each alleged robbery. When the
motion was filed, Bowers’s trial was scheduled to start twelve days later on June
17, 2013.
In its order denying severance, the district court observed that “[a]t no time
has Defendant filed a motion requesting additional time to file pretrial motions nor
has he shown good cause for filing his motion to sever at this late date.” The court
thus denied Bowers’s motion as untimely. The district court also denied Bowers’s
motion to sever on the merits, finding that joinder of the claims was proper and
that any potential prejudice could be cured by use of Eleventh Circuit Pattern Jury
Instruction B-10.2.
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Thereafter, Bowers proceeded to trial on all sixteen counts. At the close of
the Government’s case, Bowers moved for judgment of acquittal on the grounds
that the Government failed to present sufficient evidence identifying him as the
perpetrator of all eight robberies. The court deferred ruling on the motion pursuant
to Federal Rule of Criminal Procedure 29(b). Bowers later renewed his motion
after the Government did not present a rebuttal case and the court again deferred its
ruling. After a four-day trial, the jury found Bowers guilty on all sixteen counts.
Bowers then renewed his motion a second time and also moved for a new trial.
The court denied both motions.
Prior to sentencing, Bowers moved to declare 18 U.S.C. §§ 924(c)(1)(A)(ii)
and 924(c)(1)(C)(i) unconstitutional on their face and as applied against him. After
argument at the sentencing hearing, the district court denied Bowers’s motion and
sentenced him to consecutive terms of imprisonment of 140 months for the
§ 1951(a) violations and a mandatory 182 years for the § 924(c)(1)(A)(ii)
violations. Bowers timely appealed the denial of his motions to sever, for
judgment of acquittal, and challenging the constitutionality of his 182-year
sentence for the § 924(c) convictions.
B. Evidence Presented at Trial
Because there are eight alleged robberies in this case, the evidence is
relatively voluminous, although not particularly complex. The admitted evidence
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consists primarily of witness descriptions of the robberies and the perpetrator, law
enforcement testimony regarding the investigation, the crime scenes, DNA
evidence, and cell phone “hit” evidence. We recount the evidence in detail to
determine whether it was sufficient to support the jury’s verdict. The evidence
below is taken in the light most favorable to the government. See United States v.
Isnadin, 742 F.3d 1278, 1303 (11th Cir. 2014).
1. Bowers’s Ownership of a MetroPCS Cell Phone and Related
Identifying Evidence
The following evidence was introduced to establish that Bowers possessed a
cell phone that was connected to the robberies. In April 2012, a MetroPCS cell
phone account was opened in the name of “Strizzle Young.” The account’s phone
number was associated with a Kyocera Domino grape-colored cell phone. In June
and November, two photographs of Bowers were saved to the phone, and in
October a text message addressed to “Demetrius” was sent to the phone.
In September 2012, Bowers opened an account with Amscot Financial, a
provider of financial services such as money transfers, which he used to receive
three money transfers. Each time he received money via Amscot, he listed the
number associated with the MetroPCS account as his mobile phone. On
September 11, 2012, the first time he received a money transfer, Bowers listed
12464 Tansboro Street, Spring Hill, Florida, 34608 as his address. Testimony
from Bowers’s ex-girlfriend, who lived at that address, established that Bowers
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lived there in September 2012 and that he moved out at an unspecified date in
October. Each time he received money via Amscot, Bowers provided a copy of his
Florida Driver’s License, which describes Bowers as 5'10" tall. Additionally,
Bowers used his EBT card in areas and at times that correspond with cell phone
tower hits generated by the MetroPCS phone.
At the time of Bowers’s arrest on November 21, 2012, he possessed a
MetroPCS Kyocera Domino grape-colored cell phone. Officers called the number
they believed to be associated with Bowers and the phone rang, at which point
Bowers “became upset” and yelled to people in the area to turn off his phone.
Further, on a call from the jail, he stated that “they got my calls logged,” referring,
apparently, to the MetroPCS call log that the Government later introduced at trial.
On another call, a female speaker momentarily referred to Bowers as “Strizzle”
before he immediately interrupted her. Bowers replied that she should “tighten
up,” she was “tripping,” and clarified that he was referring to “what you chirping”
and “what you just hollered.”
The Government also introduced an incriminating text message sent from
his phone. On October 29, 2012, after six of the robberies occurred, Bowers sent a
message indicating he intended to move into a new residence that cost $1,000 a
month in rent. A wage-and-hour report indicated that Bowers received only
$1,649.07 in total wages during the second and third quarters of 2012.
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An analyst and record custodian from MetroPCS testified as a fact witness
regarding cell phone towers and telephone records. 1 He explained that when cell
phones are carried from location to location while activated, they hit cell towers in
the network. Notably, on MetroPCS’s network, this only occurs while a call is
taking place, not when a phone is simply turned on while traveling. Hit records are
maintained by cell service providers’ call logs, including MetroPCS. An agent
with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) testified
concerning the call logs and cell tower data. He determined that Bowers’s cell
phone was “not in use” during the robberies, but that the cell phone data during the
surrounding hours “could not eliminate” Bowers as a possible perpetrator. His
specific testimony regarding each robbery is addressed below.
2. Papa John’s (Tampa, Florida), 9/23/2012
The first charged robbery occurred on September 23, 2012 at 1:10 a.m. at a
Papa John’s restaurant on 7891 Gunn Highway in Tampa, Florida. The robber
used a concrete paver to shatter a window adjacent to the entry door. Two
employees were present when the robber entered. The first employee witness
described the robber as an African-American male, taller than herself and a normal
1
The Government offered the analyst as an expert, but the district court only allowed him
to testify as a fact witness.
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weight, wearing a black turtle neck, ribbed ski mask and black shoes, and carrying
a black gun.
The second employee witness described the robber as an African-American
male, being approximately 6'0" tall and weighing a little less than 180 pounds.
According to the employee, the robber carried a small-caliber black handgun and
wore a dark long-sleeved shirt, dark pants, and gloves. Notably, this employee
also described the robber as wearing a knit mask that looked like a beanie that was
rolled down with holes cut out of it. He said it almost resembled a ski mask.
A Hillsborough County Sheriff’s K-9 Deputy responded to the scene ten
minutes after the robbery. While searching the parking lot and area surrounding
the Papa John’s, the deputy noticed a dark object along a fence sixty yards away.
As he approached, his canine alerted to the object. The object was a black wool
cap with two eye holes, but no mouth hole, cut out. The cap was submitted to the
Florida Department of Law Enforcement for DNA testing and returned four
possible contributors of DNA on the cap’s exterior; however, no major contributor
could be determined. Regarding the cap’s interior, a crime laboratory analyst
stated that there were at least three contributors of DNA on the interior cap sample
and that one person was a “major contributor at all 15 areas, meaning one person
contributed a greater quantity of DNA in the mixture than the other contributors.”
At that time, however, no suspect had been identified and the analyst did not
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compare the cap’s major DNA contributor to any other DNA samples. A second
analyst testified that, at a later date, she ran a direct comparison of DNA collected
from Bowers with the DNA profile of the cap’s major contributor. The analyst
found that Bowers’s DNA was “an exact match” with the major contributor’s. The
analyst did, however, testify that the presence of Bowers’s DNA as the major
contributor could not establish that he wore the cap at the Papa John’s robbery.
Additionally, the BATF agent testified that on September 22, at 11:17 p.m.,
Bowers’s phone hit a cell tower approximately 20 to 30 miles from the Papa
John’s. No hits were recorded during the robbery, which occurred at 1:11 a.m. on
September 23. At 2:19 a.m., his phone hit a tower approximately 10 miles from
the Papa John’s. 2
3. Pizza Hut (Largo, Florida), 9/25/2012
At approximately 12:31 a.m. on September 25, 2012, a robber used a brick
to shatter the glass door to a Pizza Hut restaurant at 4335 East Bay Drive in Largo,
Florida, which is in Pinellas County. There were two employees present at that
time. The first employee testified that the robber then entered by proceeding
underneath the “push bar” in the shattered door. Further, he testified that the
robber wore dark clothes, including a black ski mask, and carried a black 9
2
On appeal, Bowers does not challenge the admissibility of the cell phone evidence
regarding the time and location of his calls.
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millimeter Glock handgun. He also testified that the robber instructed him to place
money in a bag. The second witness similarly testified that the robber was wearing
dark clothing and a mask, and carried a black gun.
On this occasion, records placed Bowers’s cell phone within a few miles of
the store, with the last hit before the robbery occurring at 10:42 p.m. on September
24. Thirteen minutes after the robbery, records showed that the cell phone hit
towers moving eastward along the Howard Franklin Bridge, which spans Tampa
Bay and connects Pinellas County to Hillsborough County.
4. Domino’s Pizza (Spring Hill, Florida), 9/27/2012
On September 27, 2012 at 12:15 a.m., a robbery occurred at the Domino’s
Pizza restaurant at 13081 Spring Hill Drive, in Spring Hill, Florida, approximately
six and a half miles from Bowers’s Tansboro Street residence. The robber threw a
green paver through the glass door and entered through the broken glass below the
push bar. Three employees were initially present, though two fled after seeing the
robber enter. All three employees saw a gun. The employee who remained
described the robber as wearing dark clothes, dark gloves, and a mask with small
holes cut out by scissors. He also described the robber as having some facial hair
that protruded from the mask. The BATF agent testified that a distinctive green
paver was used to break the glass door at the Domino’s and was recovered at the
scene. The agent checked the area surrounding Domino’s and did not find a
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similar paver. But he found a similar paver at a residence about 150 yards from the
Tansboro Street address where Bowers lived in September 2012.
On September 26, Bowers’s phone hit a tower approximately four miles
from the Domino’s at 11:19 p.m. Fourteen minutes after the robbery, his phone hit
a tower approximately two miles away from the Domino’s.
5. Pizza Hut (Tampa, Florida), 10/7/2012
On October 7, at 1:06 a.m., the Pizza Hut restaurant at 902 Busch Boulevard
in Tampa was robbed. The manager, her husband, and their five-year-old daughter
were present. The manager testified that she saw a brick thrown through the door
and then witnessed one robber climb through the broken glass. He told her to give
him the money, but the manager tossed a deposit bag filled with money toward the
door instead. According to her testimony, a second robber reached through the
glass and grabbed the deposit bag from inside the restaurant. The manager
testified that the first robber was wearing a mask. Her husband said the first robber
was African-American and wore a long-sleeved shirt and gloves, but, unlike his
wife, testified that the first robber wore a shirt wrapped around his face. He
described the gun as a black automatic gun with a chrome barrel. The BATF agent
testified that Bowers’s phone hit a tower approximately four miles from the Pizza
Hut at 12:20 a.m. After the robbery, at 2:17 a.m., Bowers’s phone hit a tower six
miles away from the restaurant.
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6. Wendy’s (Tampa, Florida), 10/14/2012
On October 14, at 2:41 a.m., a robbery occurred at a Wendy’s restaurant on
Bruce B. Downs Boulevard in Tampa. An officer testified that the glass door was
shattered by a rock or a piece of concrete. Witness testimony and video evidence
demonstrated that the robber wore gloves and a ski mask, and used a black and
silver gun. The robber demanded that money be placed in a bag.
The Government introduced video and still pictures from the robbery. A
still photo appears to show facial hair or a distinctive chin similar to Bowers. The
BATF agent also pointed out that the robber carried a gun in his right hand and
wore a mask with a white label or tag on the outside. Bowers’s phone hit a tower
less than one mile from the Wendy’s approximately thirty minutes prior to the
robbery. After the robbery, Bowers’s phone hit a tower less than four miles
southwest of the Wendy’s.
7. Pizza Hut (Lutz, Florida), 10/16/2012
On October 16, at 11:30 p.m., a robbery occurred at a Pizza Hut restaurant in
Lutz, Florida. The only employee present testified that the front door was still
unlocked when the robbery occurred. Notwithstanding the door being unlocked,
the robber threw a concrete brick through the glass door and climbed through the
bottom. The employee described the robber as an African-American male wearing
black pants, a black shirt, black gloves, and a ski mask with eyes cut out.
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According to her testimony, he also possessed a black gun. He demanded she
place money in a bag. The responding officer who investigated the scene testified
that it was the first time in his experience that he had seen a brick thrown through a
glass door of an open business.
The BATF agent testified that at 10:23 p.m., Bowers’s phone hit a tower
approximately nine miles from the Pizza Hut. Seventeen minutes after the robbery,
his phone hit a tower three miles from the restaurant.
8. Burger King (Tampa, Florida), 11/1/2012
On November 1, at 3:06 a.m., a Burger King restaurant at 4103 W.
Hillsborough in Tampa was robbed. Two employees were present. One witness
testified that two masked robbers dressed in black broke the glass door with a
concrete block to gain entry to the store and then jumped over the front counter.
According to testimony, one robber had a black gun. Video and photographic
evidence showed both robbers dressed in black. One robber wore black gloves and
a mask with a white tag or label.
The BATF agent testified that Bowers’s physical appearance was consistent
with that of the robber with the mask with a white tag. He also testified that
Bowers’s phone hit a tower three miles from the robbery at 1:16 a.m. Thirty
minutes after the robbery, his phone hit a tower approximately six miles from the
Burger King.
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9. Pizza Hut (Lutz, Florida), 11/4/2012
The final charged robbery occurred on November 4, 2012 at 11:30 p.m. at
the same Pizza Hut in Lutz, Florida that was robbed on October 16. The same
responding officer from the October 16 robbery responded to this robbery and
testified that the restaurant’s glass door was unlocked, but had been smashed by a
brick or block on this occasion as well. The sole employee present testified that he
heard the robber throw the brick at the door twice, breaking the glass on the second
throw. Because the hole was not big enough to crawl through, the robber simply
opened the door and walked in. The employee witness described the robber as
wearing all black, with black gloves and a black mask with holes cut out, and
carrying a black 9 millimeter gun. He described the robber as an
African-American male, approximately 5'8" to 5'10" tall. The robber demanded
that he put money in a bag.
The BATF agent testified that at 10:20 p.m. Bowers’s phone hit the same
tower it did prior to the October 16 Lutz Pizza Hut robbery. Five minutes after the
robbery, his phone hit the same tower again.
10. Modus Operandi Evidence
The BATF agent testified that the similarity and “boldness” of the robberies
were the features that led him to believe that one individual or group of individuals
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committed the robberies. In particular, the agent testified on the distinctiveness of
the method of entry:
Almost all the armed robberies I’ve investigated, at least
for sure the armed robberies I’ve investigated as an
BATF agent in which we review the crimes that were
initially investigated by the local responding agency.
When it’s an occupied structure, especially at night
when it’s lit inside, entry is usually gained either mainly
walking through the front door when the place is still
open, or waiting for an employee to exit the store, either
through a back door to empty the trash or walking to their
car at the end of the day. They will usually take control
of that person and use them to gain access into the
business.
This allows for—well, regardless, the—I have yet
to see in my capacity as an BATF agent the abrupt entry
where they throw a brick through the door. It went
against what I’ve normally seen in that by throwing the
brick or the paver, which we refer to, another thing that
made me think it was the same individual, we refer to as
a signature, it shattered the main entrance to the door
that’s illuminated or a glass entrance that can be observed
from the outside. . . .
He also noted the similar descriptions of the gun used in the robbery and the timing
of the robberies. Another officer, who responded to both the October 16 and
November 4 Pizza Hut robberies, also testified that these were the first robberies
he had seen where a robber threw a brick through an unlocked glass door of an
open business.
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II. DISCUSSION
Below we address each error raised by Bowers in the order of the
proceedings below, beginning with his motion to sever.
A. Bowers’s Motion to Sever
1. Standard of Review
As an initial matter, we must determine whether the pre-amendment version
of Federal Rule of Criminal Procedure 12, which governed the district court
proceedings, or the amended version of Rule 12, which went into effect on
December 1, 2014, governs this appeal. In their appellate briefs, Bowers and the
Government addressed only the application of pre-amendment Rule 12. In
particular, the Government relied heavily on pre-amendment Rule 12(e)’s waiver
provision and our prior circuit precedent reviewing the denial of untimely motions.
See Fed. R. Crim. Proc. 12(e) (2013); United States v. Smith, 918 F.2d 1501, 1509
(11th Cir. 1990) (finding no abuse of discretion in denying an untimely motion
where defendant did not argue good cause).
Meanwhile, between briefing in this case and oral argument, this Circuit
ruled that amended Rule 12 would apply to cases on appeal where “just and
practicable.” United States v. Sperrazza, 804 F.3d 1113, 1121 (11th Cir. 2015). In
supplemental authority, the Government conceded that it would be just and
practicable to apply amended Rule 12 to Bowers’s appeal. We agree. Because
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there is no reason amended Rule 12’s application to this case on appeal would
prejudice Bowers, Sperrazza’s “just and practicable” test is satisfied. See id.
That we should apply the amended rule in this case is clear; how to apply the
rule is a different matter. Bowers moved to sever the indicted counts after the
district court’s pre-trial-motion deadline, but before his trial, and with no attempt
to establish good cause for his delay. His motion was, therefore, untimely under
pre-amendment Rule 12(e) and would likewise be untimely under amended Rule
12(c)(3). Under Sperrazza’s interpretation of amended Rule 12(c)(3), untimely
motions are forfeited rather than waived. Sperrazza, 804 F.3d 1113 at 1121.
Bowers’s severance claim is therefore forfeited, making it entitled to plain-error
review. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731, 113 S.
Ct. 1770, 1776 (1993).
Applying plain-error review, “[w]e may reverse a conviction . . . if we find
that four prongs are met: there must be (1) an error (2) that is plain and (3) that has
affected the defendant’s substantial rights; and if the first three prongs are satisfied,
we may exercise discretion to correct the error if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) (citing Olano, 507 U.S. at 732, 113
S. Ct. at 1776 ).
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2. Analysis
In applying plain-error review, the first step is to identify an error committed
by the district court; therefore, we review the denial of severance to determine if
the district court committed error.
When reviewing motions to sever, we first address whether joinder of the
counts was proper under Federal Rule of Criminal Procedure 8(a) before
proceeding to a prejudice analysis under Rule 14(a). See United States v.
Barsoum, 763 F.3d 1321, 1337 (11th Cir. 2014). Bowers never challenged joinder,
and we agree with the district court that Rule 8(a)’s “same or similar character”
prong was satisfied. If joinder is appropriate, then Rule 14(a) gives district courts
the discretion to “order separate trials of counts” when “the joinder of offenses . . .
appears to prejudice a defendant . . . .” Fed. R. Crim. P. 14(a). For the denial of a
motion to sever to be error under Rule 14(a), a defendant must demonstrate that
failure to sever “result[ed] in compelling prejudice against which the district court
could offer no protection.” United States v. Walser, 3 F.3d 380, 385 (11th Cir.
1993). In Walser, we defined the test for compelling prejudice as
whether under all the circumstances of a particular case it
is within the capacity of jurors to follow a court’s
limiting instructions and appraise the independent
evidence against a defendant solely on that defendant’s
own acts, statements, and conduct in relation to the
allegations contained in the indictment and render a fair
and impartial verdict.
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Id. at 386–387. And if a jury can do so, then no compelling prejudice results. Id.
at 387. Even where there may be some risk of prejudice, “if the possible prejudice
may be cured by a cautionary instruction severance is not required.” Id. Further,
“absent evidence to the contrary, we presume that the jury followed the court’s
instructions . . . .” Id. (citing United States v. Badia, 827 F.2d 1458, 1466 (11th
Cir. 1987)).
In Bowers’s view, events at trial reveal that the jury was unable to follow the
district court’s instruction and that compelling prejudice occurred from the jointly
tried counts. This prejudice allegedly occurred in two related ways: jury confusion
and the impermissible cumulation of evidence. Regarding jury confusion, Bowers
argues that the Government’s presentation of evidence, particularly how they
“shifted back and forth among the eight robbery cases,” led to confusion. In
support, he points to one juror asking for a “timeline as to each count.” He
concludes on this point by alleging that “the jury was apparently left confused and
overwhelmed,” leading to a conviction without sufficient evidence as to the
individual charges.
The alleged confusion is not enough to satisfy the compelling-prejudice
standard. It is worth noting that Bowers conceded that the robberies occurred on
the dates alleged in the indictment, and substantial evidence was presented at trial
that they in fact did. Given what was disputed in this case—who the robber was,
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not when the robberies occurred—it was more important that the Government
introduced evidence of the individual robberies together than strict adherence to
the chronology of the robberies. In sum, it is unremarkable that a juror might want
a timeline in a case with multiple alleged offenses, and it is conclusory to suggest
this alleged confusion resulted in compelling prejudice in a case where the order
and dates of the robberies were not disputed and not particularly relevant to what
was in dispute.3
Bowers also argues that the jury may have improperly cumulated the
evidence to infer guilt. In his view, the presence of eight alleged robberies in the
same trial “likely bolstered the Government’s evidence as to the first-in-time
robbery,” as well as the other seven robberies. This, however, is merely
speculation and is not supported by the record. See Barsoum, 763 F.3d at 1337
(rejecting an argument that the jury may have cumulated evidence as speculation).
Besides the alleged juror confusion discussed above, nothing during the trial
suggested the jury could not properly weigh the evidence. Simply put, the jury
was not invited to find Bowers guilty by improperly cumulating unrelated evidence
from joined counts. As we explain infra Part II.B.2, it is the relatedness of the
3
The only chronological relevance of the robberies’ dates concerns the evidence of when
Bowers was living at 12464 Tansboro Street. Bowers’s ex-girlfriend’s testimony established that
he lived there in September and moved out on an unspecified date in October. The jury was
capable of understanding that testimony’s implications regardless of the order in which the
robberies were presented.
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joined robberies that permitted the jury to use identity evidence from other
robberies to determine the robber’s identity.
Finally, in many cases we have discussed how jury instructions can cure the
potential prejudice from improperly cumulating the evidence. For instance, in
Walser the district court “instructed the jury to consider each charge in the
indictment separately and not to permit a verdict on one count to affect
deliberations regarding another count.” Walser, 3 F.3d at 387; see also Barsoum,
763 F.3d at 1337; United States v. York, 428 F.3d 1325, 1334 (11th Cir. 2005);
United States v. Hersh, 297 F.3d 1233, 1244 (11th Cir. 2002). In its pre-trial order
denying Bowers’s motion to sever, the district court stated its intention to include
Eleventh Circuit Pattern Instruction B-10.2 in its jury charges and, consistent with
its order, the district court did so. 4 There is no indication that the jury was unable
4
Eleventh Circuit Pattern Instruction B-10.2 provides:
Each count of the indictment charges a separate crime. You must
consider each crime and the evidence relating to it separately. If
you find the Defendant guilty or not guilty of one crime, that must
not affect your verdict for any other crime.
I caution you that the Defendant is on trial only for the specific
crimes charged in the indictment. You’re here to determine from
the evidence in this case whether the Defendant is guilty or not
guilty of those specific crimes.
You must never consider punishment in any way to decide whether
the Defendant is guilty. If you find the Defendant guilty, the
punishment is for the Judge alone to decide later.
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to follow the district court’s charge to consider the counts separately. In sum,
Bowers has not overcome the presumption that jurors are able to follow the court’s
instruction to separately consider the evidence relating to each count.
Finding error in the district court’s failure to sever counts requires “more
than some prejudice . . . be shown; the appellant must demonstrate that he received
an unfair trial and suffered compelling prejudice.” Walser, 3 F.3d at 386 ( quoting
United States v. Harmas, 974 F.2d 1262, 1269 (11th Cir.1992)). Bowers can only
speculate about the possibility of prejudice. Further, if he did suffer any prejudice,
it was “not ‘compelling’ to the extent that ‘he received an unfair trial.’” United
States v. Slaughter, 708 F.3d 1208, 1213–14 (11th Cir. 2013) (quoting Walser, 3
F.3d at 386). Because Bowers cannot demonstrate that he suffered compelling
prejudice from the joinder of claims, the district court did not commit error, much
less plain error, in denying his motion. See United States v. Soto, 794 F.3d 635,
657 (6th Cir. 2015) (holding that, where there was no error in the denial of
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severance under Federal Rule of Criminal Procedure 14(a), there was likewise no
plain error).5
B. Sufficiency of the Evidence
1. Standard of Review
We review de novo whether the evidence presented at trial is sufficient to
support the jury’s verdict. Isnadin, 742 F.3d at 1303. “[We] consider whether,
under the totality of the circumstances, there is sufficient evidence to support a jury
verdict when the facts are viewed in the light most favorable to the government.”
United States v. Mieres-Borges, 919 F.2d 652, 658 (11th Cir. 1990). “Evidence is
sufficient to support a conviction if a reasonable trier of fact could find that the
evidence established guilt beyond a reasonable doubt.” United States v. Maxwell,
579 F.3d 1282, 1299 (11th Cir. 2009) (internal quotations and citations omitted).
5
In some of our severance cases, we have discussed whether evidence that was admitted
at trial would have been admissible at a hypothetical severed trial. E.g., United States v. Lopez,
649 F.3d 1222, 1238 (11th Cir. 2011) (finding that co-defendant’s statement would have been
admissible in severed trial as co-conspirator’s statement). But even if the evidence would be
inadmissible in such a trial, compelling prejudice does not necessarily result from a joined trial.
United States v. Harper, 680 F.2d 731, 734 (11th Cir. 1982) (“admissibility is not required in
order for the denial of severance to be within the district court’s discretion”). Here, Bowers
never argued to the district court or on appeal that evidence from the other robberies would have
been inadmissible at a severed trial. We therefore decline to engage in a lengthy hypothetical on
this point. We note only that, in a hypothetical severed trial, under Federal Rule of Evidence
404(b), modus operandi evidence and other extrinsic evidence are admissible to prove identity,
and a reasonable juror could have found by a preponderance of the evidence that Bowers
committed the extrinsic robberies, thus permitting admission subject to Federal Rule of Evidence
403. See United States v. Whatley, 719 F.3d 1206, 1217–19 (11th Cir. 2013); see also United
States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc).
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Further, “[i]t is not enough for a defendant to put forth a reasonable hypothesis of
innocence, because the issue is not whether a jury reasonably could have acquitted
but whether it reasonably could have found guilt beyond a reasonable doubt.”
United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006) (citing Mieres-
Borges, 919 F.2d at 656).
Additionally, “no distinction is to be made between the weight given to
either direct or circumstantial evidence.” Mieres-Borges, 919 F.2d at 657 (quoting
United States v. Gonzalez, 719 F.2d 1516, 1521 (11th Cir.1983)). But “[w]here the
[G]overnment relies on circumstantial evidence, ‘reasonable inferences, and not
mere speculation, must support the jury's verdict.’” United States v. Klopf, 423
F.3d 1228, 1236 (11th Cir. 2005) (quoting United States v. Perez-Tosta, 36 F.3d
1552, 1557 (11th Cir.1994)).
2. Analysis
Bowers challenges the sufficiency of the evidence on the jury’s conviction
on all sixteen counts. In particular, he disputes the sufficiency of the evidence
identifying him as the perpetrator of the eight robberies. Below we consider
Bowers’s challenge in two parts. First, we address whether there is sufficient
evidence that the same individual committed the eight robberies in question, and,
second, we discuss whether sufficient evidence identifies Bowers as that
individual. We hold that a reasonable juror could have found beyond a reasonable
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doubt that Bowers committed all eight robberies and found Bowers guilty on all
sixteen counts.
The evidence established that the eight robberies in question are sufficiently
similar that a reasonable juror could conclude that each was committed by the
same individual. We proceed from the general similarities to the most specific.
The eight robberies were committed over six weeks between September 23, 2012
and November 4, 2012. The robberies were committed in Hernando, Hillsborough,
and Pinellas Counties. All eight robberies were committed against fast food
restaurants. More specifically, six of the eight robberies were against pizza
restaurants, including the same Pizza Hut on two occasions. The robberies were all
committed at night, with the six pizza restaurant robberies being particularly close
in time—between 11:30 p.m. and 1:10 a.m.
Moving to more specific instances of similarity, the witness descriptions of
the perpetrator support the jury’s conclusion that the same individual committed all
eight robberies. The robber was consistently described as an African-American
male who was, for example, six-feet tall, a little bigger than 5'8", or between 5'8"
and 5'10" tall. Regarding his weight, witnesses described him as “average weight,”
“slender . . . weighing between 150 to 180 pounds,” and weighing more than one
witness who was 130 pounds. The robber was described as wearing all black and a
mask. The mask was variously described as a “ski mask,” “knit,” “wool,” or a
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“beanie” that had been modified to have eye holes. 6 These descriptions were
consistent with surveillance video and still photographs introduced from the
Burger King and Wendy’s robberies that depicted a robber wearing a long-sleeved
black shirt and a black mask with a white label on the back.
Finally, and most importantly, the Government presented evidence of a
unique method of entry that was consistent among the robberies. On most
occasions, the robber approached the customer entry door and threw a brick or
piece of concrete through the glass below the “push” bar. Once the lower glass
was broken, the robber then entered by crouching and walking through the door,
under the bar.7 Similarly, at the Papa John’s robbery, the robber threw a concrete
paver through the store’s front window, adjacent to the entry door. Testimony by
the BATF agent and another officer supported the conclusion that entry by
breaking the glass of an entry door with a brick at an occupied or open business
was unique to these robberies.
6
One witness described the robber as wearing a shirt wrapped across his face, but another
witness from the same robbery described the same black knit mask consistent with the other
robberies. The jury was free to credit the testimony of the latter witness. Additionally, some
witnesses described the mask as having a hole for the mouth as well as the eyes. Given the other
consistencies in the robberies, the jury could conclude that the witnesses’ memories of the mouth
hole were faulty. In any event, taken in the light most favorable to the Government, such a
minor inconsistency in the descriptions of the mask does not demonstrate a different perpetrator.
7
At the November 4 Pizza Hut robbery, the robber threw a brick through the lower glass,
but, because the glass was only partially shattered, proceeded to enter by opening the door in the
typical way.
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There are, however, some inconsistencies between the robberies. Most
notably, two robberies featured two perpetrators. During the October 7 Pizza Hut
robbery, a store employee threw the restaurant’s deposit bag toward the entry door
and a second robber reached from outside the door to retrieve it. And at the
November 1 Burger King robbery, two people broke the glass door with a concrete
block and robbed the restaurant. The Government, however, presented video and
still pictures that showed a robber wearing a mask with a white label or tag at both
the Burger King robbery, which two robbers committed, and the October 14
Wendy’s robbery, which one robber committed. A reasonable juror could
conclude that this white-label robber was present at all eight robberies, even if
joined by a second person for two robberies. Additionally, there are slight
discrepancies between the witness descriptions regarding the gun used, the mask
and other clothing worn, and the robber’s physical appearance. Those
discrepancies are minor in nature and the jury was free to conclude that they
resulted more from imperfect witness memories than from material differences in
the robberies.
Notwithstanding these differences, taking the evidence in the light most
favorable to the Government, a reasonable juror could conclude that the same
person committed all eight robberies. That conclusion is supported by generally
consistent witness descriptions, the similarity in the restaurants targeted, the
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relative consistency in time of day, the short period of time during which all
robberies were committed, the geographic proximity of the robberies, and the
consistent method of entry. All told, the robber used a consistent and unique
modus operandi in his commission of these robberies. Cf. Whatley, 719 F.3d at
1217–19 (discussing, in the context of admission of evidence, the similarity among
robberies required to establish a modus operandi). The question then becomes,
could a reasonable juror conclude beyond a reasonable doubt that Bowers was the
robber? Answering that question requires different evidence, which we now
address.
The primary evidence linking Bowers to the robberies includes: (1) DNA
evidence from the Papa John’s robbery; (2) witness descriptions of the robber; (3)
cell phone hit evidence; (4) Bowers’s own inculpatory statements; and (5) the
similarity between green pavers near Bowers’s Tansboro Street residence and the
one found at the Domino’s robbery.
Perhaps the most important piece of evidence is the mask found at the first
robbery. The mask was discovered approximately 150 yards from the entrance to
the Papa John’s, around the corner of the small shopping center that included the
Papa John’s, and close to a fence that divided the stores from nearby residences.
The “mask” is actually a black wool cap that was modified to have eye holes and
was apparently worn by pulling it over the perpetrator’s head and across his face,
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at which point it resembled a ski mask. The modified cap found at the Papa John’s
is consistent with witness descriptions of the “mask” used at the other robberies.
An expert from the Florida Department of Law Enforcement testified that
Bowers’s DNA is the “predominant” match with DNA found on the inside of the
cap. As Bowers pointed out at trial, the expert could not conclude whether he wore
the mask the night of the robbery. Nevertheless, as we discuss in more detail
below, the presence of a cap possessing Bowers’s DNA that matches the
description of the mask worn by the robber is circumstantial evidence that the jury
may properly consider.
Additionally, Bowers’s own body type was consistent with witness
descriptions of the robber. Bowers’s driver’s license lists him as 5'10" tall.
Surveillance footage of the Burger King and Wendy’s robberies shows a robber
wearing a long-sleeved black shirt and a black mask with a white tag. According
to the BATF agent’s testimony, that robber’s physical appearance resembles
Bowers’s. Additionally, one witness testified that he could see that the robber had
facial hair or a goatee and video and photographs from the Wendy’s robbery also
showed what appeared to be the robber’s facial hair. In its order denying Bowers’s
motion for judgment of acquittal, the district court observed that Bowers had a
goatee that was consistent with the testimony and video. The jury also could
observe Bowers’s goatee and physical appearance during the trial.
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Additionally, the testimony of the BATF agent and the call logs introduced
at trial place Bowers in relative proximity to each of the robberies. As an initial
matter, substantial evidence supported Bowers’s possession of the MetroPCS
Kyocera Domino cell phone during the relevant six-week period. See supra Part
I.B.1. Testimony established that whenever an incoming or outgoing call is made
on MetroPCS’s network, the cell phone “hits” a tower within two miles of the
phone’s location. The testimony made clear that the cell phone only hits towers
while a call is connected and not when it is merely on or, for instance, a call is
made but not answered. The call logs and the agent’s testimony place Bowers’s
cell phone and, by inference, Bowers in the general vicinity and often close
proximity of the robberies. 8 Further, Bowers never hit a tower during a robbery,
which is consistent with him not making or accepting any calls during the
robberies. The most salient feature of the call logs is the relation between the
timing of the hits and the distance from the robberies when they occurred. On each
occasion, pre- and post-robbery hits are consistent with an inference that Bowers
drove to and from the robbery.
A jury could, of course, make a reasonable inference of innocence from
these call logs. For instance, that no calls ever connected while the robberies were
8
For greater detail on the proximity of the cell tower hits from each robbery, see supra
Parts I.B.2–9.
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occurring could simply be a reflection of the short time the robberies took, rather
than evidence that Bowers turned his cell phone off or refrained from placing calls
during the robberies. Or, for another example, hitting towers in the Tampa area
could reflect the realities of driving in a dense city with numerous towers where, at
any given time, a driver could innocently drive by these restaurants. But we think
the jury could infer the less innocent explanation that on eight separate occasions,
late at night or in the early morning, Bowers was present at the robberies. 9
The remaining pieces of evidence corroborate the evidence already
discussed. For one, Bowers’s text message suggests that he had enough money to
rent a $1,000 per month apartment. Given that Bowers’s wage-and-earnings report
indicates he made only $1,649.07 in the second and third quarters of 2012, the jury
was free to infer that some of his extra money was derived from the six robberies
that took place prior to the text message. Moreover, on multiple occasions Bowers
attempted to hide his possession of his MetroPCS cell phone. This began, of
course, by registering it under an alias rather than his full name and continued until
he was arrested and directed others to turn off his phone.
9
Below we discuss how the cell tower hits and other evidence allow certain inferences to
be drawn from the DNA evidence that may otherwise be impermissible. Similarly, the DNA
evidence allows the jury to infer more from the cell tower hit evidence than would otherwise be
permissible. As should be clear, this is not a case where the jury was presented with simply a
suspicious correlation between cell tower hits and robbery locations.
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Finally, one of the pavers used by the robber has a particular connection to
Bowers. The perpetrator used a green paver to break the door of Domino’s Pizza
on September 27, 2012. The BATF agent testified that the green paver had a
“distinctive” appearance and that none like it was found near the Domino’s. There
were, however, similar green pavers found at a residence approximately 150 yards
from Bowers’s Tansboro Street residence. Bowers’s access to the unique kind of
paver used at the Domino’s robbery permits the inference that he committed the
robbery in question. Though not a particularly strong piece of evidence in its own
right, it is part of the totality of evidence the jury could consider.
No one piece of evidence discussed above is dispositive in this case. But
courts instruct jurors to consider the totality of the evidence presented to determine
a verdict. Conversely, courts instruct jurors not to improperly cumulate evidence.
Said another way, courts instruct jurors to consider the totality of evidence related
to each crime while not using guilt of one crime as a substitute for evidence on
other charged crimes or using evidence related to one crime to convict on distinct,
unrelated crimes. We are convinced the jury did the former and not one of the
latter in this case. Considered in total and in the light most favorable to the
Government, sufficient evidence identifies Bowers as committing the eight
charged robberies.
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Bowers’s contention related to the DNA evidence warrants further
discussion. Bowers argues that reliance on the DNA evidence from the Papa
John’s robbery requires an impermissible inference that, because his DNA was the
predominant match on the mask, he therefore was wearing the mask on the night in
question. In support, he cites United States v. Bonner, 648 F.3d 209 (4th Cir.
2011). In Bonner, two disguised men, one of whom was wearing a New York
Yankees baseball hat, robbed a Subway. Id. at 211. Later that night, the police
recovered a Yankees hat behind the Subway, which was identified as worn by the
robber. Id. at 212. The Government argued that, because the defendant’s DNA
was the “predominant” match on the hat, “it was reasonable for the jury to infer
that he was wearing the hat on the night of the robbery.” Id. at 214. The DNA
expert testified, however, that “he could not conclude who last wore the hat based
on the DNA.” Id. The Fourth Circuit held that “any assumption that Bonner was
the last wearer is an impermissible inference by the jury.” Id. 10 Three reasons
10
Other evidence was presented at trial, but was not discussed in detail by Bonner. The
Fourth Circuit summarized the evidence as:
(1) a hat with multiple DNA matches worn by Bonner was also
worn by one of the robbers; (2) Bonner's wallet, discovered in the
alleged getaway car; (3) phone records showing calls from
Bonner's cell phone to [his girlfriend] and [his cousin] the night
after the robbery; and (4) a separate phone record showing a call
from a nearby gas station to [his girlfriend].
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supported that holding. First, equally plausible scientific inferences supported
innocence. Id. at 214–15. Second, the argument that a jury could draw a scientific
inference from the predominance of the defendant’s DNA to his wearing the
Yankees hat that night was contrary to the evidence in the record. Id. at 215. And,
finally, a commitment to scrutinizing forensic evidence counseled against allowing
the jury to make an unsupported scientific inference. Id.
To resolve this issue, we do not need to decide whether it is an
impermissible scientific inference to infer that Bowers was wearing the mask the
night of the Papa John’s robbery from only his DNA match, as the Fourth Circuit
did in Bonner. Instead, we hold that, where modus operandi evidence supports the
inference that the same individual committed multiple robberies, it is permissible
Bonner, 648 F.3d at 214. The Fourth Circuit noted that the district court found that the content of
the cell phone calls above was not in the record and therefore could have been innocuous. Id. at
213. Further, the district court discounted the evidence of the call from the gas station because
the call was hours after the police dogs had tracked the scent from the Yankees hat to the station.
Id. at 213–14.
Besides recounting the district court’s views, the Fourth Circuit itself did not comment on
the non-DNA evidence and its existence appears to not factor into the opinion’s reasoning. The
Fourth Circuit possibly analyzed the case in this manner because the Government had explicitly
argued that the scientific inference was a permissible one, notwithstanding the expert’s contrary
testimony. Id. at 214 (“in this case, the government asked the jury to draw unwarranted
inferences based on two unconnected pieces of scientific evidence through argument instead of
specialized knowledge”). We think Bonner is best understood as resting on the permissible
inferences that can be drawn from the DNA evidence standing alone. See id. at 215 (discussing
three reasons that support the decision, all of which concern scientific evidence). Therefore, we
limit our discussion on Bonner to the DNA evidence and the inferences that may be drawn from
it.
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to consider identity evidence from the other robberies, including, in this case,
consistent physical descriptions and cell phone records, to corroborate the identity
DNA evidence from an initial robbery. See United States v. Burston, 159 F.3d
1328 (where Government “presented evidence that the same modus operandi was
used in [two] robberies . . . evidence of involvement in one provided some
evidence of involvement in the other.”). In other words, the additional identity
evidence from the other robberies transforms an impermissible scientific inference
under Bonner (i.e., that the defendant was wearing the hat on the night of the
robbery based on the predominance of his DNA), to a permissible one supported
by identity evidence from other robberies with a consistent modus operandi.
We acknowledge that this is a close case. It is a notably weaker case than
United States v. Tate, 586 F.3d 936 (11th Cir. 2009), for example, which Bowers
attempted to distinguish at trial and on this appeal. 11 In Tate, the defendant was
charged with five bank robberies. Id. at 939. Those robberies were connected by a
11
Bowers also cites and distinguishes the evidence found to be sufficient in United States
v. Feliciano, 761 F.3d 1202 (11th Cir. 2014). His reliance on Feliciano is unhelpful. In that
case the defendant’s conviction on three robbery related offenses turned on the credibility of
testimony by two alleged co-conspirators against him. Id. at 1206–07. Credibility
determinations are the exclusive province of the jury, unless the testimony is “incredible as a
matter of law.” Id. at 1206 (quoting United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.
1999)). In Feliciano, direct testimony from two co-conspirators established that the defendant
committed the robberies; the jury credited that testimony and found the defendant guilty. Id. at
1207. The instant case is not about credibility determinations; rather, it is about the
reasonableness of juror inferences drawn from circumstantial evidence. Feliciano therefore is so
dissimilar as to be an unhelpful comparison for Bowers.
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consistent modus operandi where the robber, dressed in sunglasses and a baseball
hat, would hand the teller a withdrawal slip and demand money. Id. at 939–41.
The defendant’s fingerprints were found on the withdrawal slips from the
robberies. Id. at 944. Tellers from two of the banks testified that the defendant
was the robber. Id. at 940–41, 944. The distinction between Tate and this case is
the superior evidence presented in Tate that the defendant committed at least two
of the robberies. From there, the jury was able to infer from modus operandi
evidence that the defendant committed the other robberies as well. Id. at 945
(citing United States v. McDowell, 250 F.3d 1354, 1364 (11th Cir. 2001)).
In Bowers’s case, the modus operandi evidence permits the jury to conclude
that one person committed all eight robberies. That conclusion makes identity
evidence from one robbery related to the other robberies. The relatedness of the
identity evidence means that jurors may properly consider identity evidence from,
for instance, the Papa John’s robbery to determine the identity of who robbed the
Domino’s, and so on. The totality of the identity evidence presented in this case is
sufficient to convict Bowers on all sixteen counts. Therefore, the district court’s
denial of Bowers’s motion for judgment of acquittal is affirmed.
C. Sentencing
Bowers’s third and final enumeration of error is a three-pronged challenge to
the constitutionality of his sentence. In particular, Bowers argues that his
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mandatory sentence under 18 U.S.C. § 924(c) violates: (1) separation of powers;
(2) due process and equal protection; and (3) the Eight Amendment. As Bowers
concedes, these arguments are foreclosed by prior Supreme Court and Eleventh
Circuit precedent. Because Bowers seeks to preserve a record of these issues, we
likewise recount the relevant facts and the precedents that control our decision. In
the end, we affirm the district court and find Bowers’s sentence constitutional.
We review constitutional challenges to a sentence de novo. United States v.
Steed, 548 F.3d 961, 978 (11th Cir. 2008). Additionally, we are bound by the prior
panel decisions of this Court until those holdings are abrogated by the Supreme
Court or by this Court sitting en banc. Cargill v. Turpin, 120 F.3d 1366, 1386
(11th Cir. 1997).
We begin with the mechanics of § 924(c) as applied in this case. The jury
found Bowers guilty of eight violations of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts 2,
4, 6, 8, 10, 12, 14, and 16 ). Violations of § 924(c) carry mandatory-minimum
sentences that vary depending on the defendant’s predicate conduct and criminal
history. Relevant to Bowers’s case, § 924(c)(1)(A)(ii) provides that “if [a] firearm
is brandished” during the commission of any crime of violence, the perpetrator
“shall be sentenced to a term of imprisonment of not less than 7 years.” Further,
§ 924(c)(1)(C)(i) provides that “second or subsequent” § 924(c) violations carry a
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“sentence[] to a term of imprisonment of not less than 25 years.” 12 Finally,
§ 924 (c)(1)(D)(ii) prohibits courts from ordering that the sentences under both this
subsection and the underlying crime of violence run concurrently. Together these
three provisions mandated Bowers’s sentence. The district court sentenced Bowers
to seven years imprisonment for Count 2 and twenty-five years for each of Counts
4, 6, 8, 10, 12, 14, and 16, running consecutively. In sum, for the violations of
§ 924(c), Bowers was sentenced to 182 years in prison, to run consecutively after
his 140 months for the § 1951(a) violations.
Beginning with the separation of powers challenge, this Court has rejected
separation of powers arguments against mandatory-minimum sentences in two
published opinions. United States v. Paige, 604 F.3d 1268, 1274 (11th Cir. 2014)
(per curiam); United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir. 1988). In
Holmes, we held that the defendant’s “argument that the mandatory minimum
sentence requirements violate the separation of powers doctrine is without force.”
Holmes, 838 F.2d at 1178. We reasoned, “[i]t is for Congress to say what shall be
a crime and how that crime shall be punished . . . .” Id. (quoting United States v.
Smith, 686 F.2d 234, 239 (5th Cir.1982)). Likewise, in Paige, we affirmed a
12
This Court previously held, and the Supreme Court later confirmed, that additional
§ 924(c) counts charged in the same indictment are second and subsequent for purposes of
§ 924(c)(1)(A)(ii). United States v. Rawlings, 821 F.2d 1543, 1545 (11th Cir. 1987); see also
Deal v. United States, 508 U.S. 129, 113 S. Ct. 1993 (1993).
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mandatory fifteen-year sentence pursuant to 18 U.S.C. § 2251(e) over the
defendant’s separation of powers challenge. Paige, 604 F.3d at 1274 . Besides
these two opinions, we have only addressed this issue in unpublished opinions that
note the binding nature of prior circuit precedent. E.g., United States v.
Garrastequi, 371 F. App’x 22, 24 (11th Cir. 2010) (per curiam). Once again we
are bound by our precedent until a ruling of the Supreme Court or this Court sitting
en banc abrogates Holmes and Paige; hence, Bowers’s separation of powers
challenge must fail.
Bowers also challenges § 924(c)’s mandatory-sentencing provisions on the
grounds that they deprive him of an individualized sentencing proceeding in
violation of due process and equal protection. His brief cites due process and equal
protection together, but, in truth, only argues a due process violation. Because he
concedes this issue under current precedent, we decline to separately address equal
protection and turn to his due process challenge.
In Bowers’s view, the mandatory-sentencing provisions denied him due
process by effectively sentencing him to life in prison without consideration of
mitigating circumstances, including his “individualized history and character . . . or
the circumstances of the offense.” The Supreme Court has held—for purposes of
the Eighth Amendment— that an individualized sentencing determination is not
required in non-capital cases. Harmelin v. Michigan, 501 U.S. 957, 995, 111 S. Ct.
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2680, 2702 (1991). 13 With respect to due process, we have held that the lack of
individualized sentencing determinations under § 924(c) does not violate the
Constitution. United States v. Hamblin, 911 F.2d 551, 555 (11th Cir. 1990).
Accordingly, Bowers’s due process challenge is foreclosed.
Finally, Bowers argues that his sentence violates the Eighth Amendment’s
prohibition of cruel and unusual punishment. “[T]he Eighth Amendment contains
a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” Ewing
v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185 (2003) (quoting Harmelin,
501 U.S. at 996-997, 111 S.Ct. at 2702 (Kennedy, J., concurring in part and
concurring in judgment)). Generally, sentences within the statutory limits are
“neither excessive, nor cruel and unusual under the Eighth Amendment.” United
States v. Moriarity, 429 F.3d 1012, 1024 (11th Cir. 2005). “This is so because we
accord substantial deference to Congress, as it possesses ‘broad authority to
determine the types and limits of punishments for crimes.’” United States v. Raad,
406 F.3d 1322, 1323 (11th Cir. 2005) (quoting Solem v. Helm, 463 U.S. 277, 289,
103 S. Ct. 3001, 3009 (1983)). Further, the Supreme Court has held that the
mandatory nature of a sentence is irrelevant for Eighth Amendment purposes.
13
Harmelin is a fractured opinion. On the individualized sentencing issue, Justice
Scalia’s opinion speaks for the Court while on other issues, including the proportionality issue
discussed infra, Justice Kennedy’s concurrence, as the narrowest grounds, is considered the
Court’s opinion. United States v. Farley, 607 F.3d 1294, 1339–40, 1339 n.30 (11th Cir. 2010).
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Harmelin, 501 U.S. at 994–995, 111 S. Ct. at 2701; id. at 1006, 111 S. Ct. at 2707–
08 (Kennedy, J., concurring). Instead, the sentence should be evaluated as if it
were imposed by the sentencing court in the exercise of its discretion. United
States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010).
To determine whether a particular non-capital sentence violates the Eighth
Amendment,
a reviewing court must make a threshold determination
that the sentence imposed is grossly disproportionate to
the offense committed and, if it is grossly
disproportionate, the court must then consider the
sentences imposed on others convicted in the same
jurisdiction and the sentences imposed for commission of
the same crime in other jurisdictions.
Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (citing United States v. Brant, 62
F.3d 367, 368 (11th Cir. 2000)). The Supreme Court has counseled that
“successful disproportionality challenges should be ‘exceedingly rare.’” Farley,
607 F.3d at 1337 (quoting Hutto v. Davis, 454 U.S. 370, 374, 102 S. Ct. 703, 704–
05 (1982)). In part, this is because “we lack clear objective standards to
distinguish between sentences for different terms of years.” Harmelin, 501 U.S. at
1001, 111 S. Ct. at 2705.
With that framework in mind, the threshold question then is whether
Bowers’s 182-year sentence is “grossly disproportionate” to the offenses
committed, namely brandishing a firearm during the course of eight robberies.
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Supreme Court and Eleventh Circuit precedent have set a high bar for a sentence to
be “grossly disproportionate.” For example, the Supreme Court in Harmelin found
that a sentence of life without parole was not grossly disproportionate for a first
time offender convicted of cocaine possession. Harmelin, 501 U.S. at 1001.
Likewise, we have upheld a mandatory life sentence without parole for a defendant
convicted of trafficking in and possession of methamphetamine with two prior
felony drug convictions. United States v. Hoffman, 710 F.3d 1228 (11th Cir. 2013)
(per curiam). And in Farley we upheld a mandatory thirty-year sentence for
aggravated sexual abuse of a child under 18 U.S.C. § 2241(c). Farley, 607 F.3d at
1343. In fact, this Court has never found a non-capital sentence of an adult to
violate the Eighth Amendment. Id. at 1343; accord United States v. McGarity, 669
F.3d 1218, 1256 n.57 (11th Cir. 2012) (noting the same).
In support of his argument, Bowers mentions that the sentencing guideline
range was 210–262 months, and the mandatory-minimum sentence “essentially
multiplied that range ten-fold, calling for the imposition of a sentence of 2,184
months.” But, as discussed above, prior Supreme Court and Eleventh Circuit cases
have found that greater sentences, for less serious conduct, for defendants with less
serious criminal histories were not grossly disproportionate. See also United States
v. Clark, 634 F.3d 874, 877–78 (6th Cir. 2011) (affirming a 189-year sentence for
seven armed robberies). In the present case, Bowers has been convicted of
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brandishing a firearm during eight separate robberies and the district court imposed
a mandatory 182-year sentence. But in Harmelin the defendant was sentenced to
life imprisonment without parole, “the second most severe penalty permitted by
law,” Harmelin, 501 U.S. at 1001, 111 S. Ct. at 2705, for possessing 672 grams of
cocaine. Id. at 961. Given the severity of the committed offenses, and in light of
Harmelin, we hold that Bowers’s sentence is not grossly disproportionate to the
offending conduct; therefore, it does not violate the Eighth Amendment.
***
There is no doubt that the consequences of Bowers’s convictions are severe.
In affirming his sentence, we follow two of the oldest principles of our federal
structure. First, Congress possesses the power, as limited by the Constitution, to
define crimes and their punishments. Cf. United States v. Hudson, 11 U.S. 32, 34,
7 Cranch 32, 34, 3 L. Ed. 259 (1812) (“The legislative authority of the Union must
first make an act a crime, affix a punishment to it, and declare the Court that shall
have jurisdiction of the offence.”). Second, we are bound to follow the decisions
of the Supreme Court and our prior panels. See Martin v. Hunter’s Lessee, 14 U.S.
304, 348, 1 Wheat. 304, 348 (1816) (discussing, in the context of Supreme Court
review of state court judgments, the importance of uniform interpretation and
application of the law); The Federalist No. 22 (Alexander Hamilton) (“To avoid
the confusion which would unavoidably result from the contradictory decisions of
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a number of independent judicatories, all nations have found it necessary to
establish one court paramount to the rest, possessing a general superintendence,
and authorized to settle and declare in the last resort a uniform rule of civil
justice.”).
Some may believe that § 924(c)’s severe mandatory minimums “do[] not
deter crime as much as [they] ruin[] lives.” Deal v. United States, 508 U.S. 129,
146 n.10 (Stevens, J., dissenting) (quoting United States v. Jones, 965 F.2d 1507,
1521 (8th Cir. 1992)). This may particularly be so when “second or subsequent”
convictions occur in the same case, rather than in separate proceedings. See id. at
139–42; see also Erik Luna & Paul G. Cassell, Mandatory Minimalism, 32
Cardozo L. Rev. 1, 80–81 (2010) (advocating, among other reforms, Congressional
amendments to reform § 924(c)’s “second or subsequent” provision into a “true
recidivist” law). Congress, however, could rationally conclude that mandatory
sentences are appropriate. The common principle among our precedent is that the
Constitution grants Congress the power to do so. Farley, 607 F.3d at 1343;
Hamblin, 911 F.2d at 555–56; Holmes, 838 F.2d at 1178. Because Bowers’s
arguments are foreclosed, we affirm his sentence.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
44
United States v. Demetrius Renaldo Bowers
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2016-01-22
Citations: 811 F.3d 412
Copy CitationsCombined Opinion