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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12162
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60294-RNS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWAYNE T. JACKSON,
a.k.a. Wondwane T. Jackson,
a.k.a. Edward Rogers,
CARLOS JENKINS JR.,
QUINTON JOHNSON,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Florida
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(March 31, 2016)
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Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Dwayne Jackson, Carlos Jenkins, and Quinton Johnson appeal their
convictions for their roles in the robbery of a SunTrust Bank in Coral Springs,
Florida, 18 U.S.C. §§ 2, 2113(a), 924(c)(1)(A)(ii), and Jackson and Jenkins appeal
their respective sentences of 71 and 360 months of imprisonment. Jackson,
Jenkins, and Johnson challenge the sufficiency of the evidence, and Jackson and
Jenkins contend the district court erred by evaluating their motions for a new trial
using the standard for a motion for a judgment of acquittal. Jenkins also argues that
he was entitled to a new trial based on the prosecutor’s improper closing argument
and that his sentence is procedurally and substantively unreasonable. Jackson also
challenges his classification as a career offender and, based on his argument in his
reply brief that the intervening decision of the Supreme Court in Johnson v. United
States, 135 S. Ct. 2551 (2015), invalidated the residual clause of the Sentencing
Guidelines, we directed the parties to file supplemental briefs addressing the issue,
see United States v. Durham, 795 F.3d 1329, 1331 (11th Cir. 2015). After careful
consideration, we affirm.
I. BACKGROUND
On the morning of November 14, 2012, two African-American men wearing
hats, sunglasses, and bandannas entered the SunTrust Bank and announced “it is a
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robbery.” One robber leapt across the customer counter carrying two 55 gallon
garbage bags, threw one bag on the ground and stuffed the second bag with cash in
the bank tellers’ drawers. Meanwhile, the second robber, who was wielding a gun
and a tire iron and wearing a black sweatshirt, instructed bank customers to lie on
the ground. Surveillance video recordings showed that the gunman was also
wearing a dark knit cap over a baseball hat, two-tone gloves, something blue under
his jeans, and a belt that hung almost to his knees.
Based on information provided by a customer who the gunman forced to
relinquish his bag of currency, Juan Landazabal, and an employee of the United
Postal Service, Steven Carrier, officers determined that the robbers left the bank in
a Nissan Sentra that was navy blue and, after driving a few blocks, switched to a
Dodge Charger. Carrier, who was parked in a plaza near the bank, called 911 and
reported that the Sentra sped into the plaza and pulled in a parking spot, after
which two men, one of whom was wearing a red shirt, bounded out of the Sentra,
leaving its doors ajar, and into the Charger, which sped away. While Carrier was
talking to the dispatcher, officers arrived at the plaza and examined the Sentra,
which had been hotwired and left with its motor running. Officers photographed a
semi-automatic pistol and gloves lying in the front passenger seat of the Sentra.
Officer William Reid of the Coral Springs Police Department located the
Dodge Charger on a nearby highway and embarked on a high-speed chase that
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ended when the Charger struck another vehicle, crossed a grass median, and
stopped in the opposite lane of traffic. An aerial video recording of the chase
showed three men scatter from the Charger. The video footage depicted a man
wearing a light-colored shirt scramble out of the driver’s door, after which a
second man wearing a red shirt staggered out of the rear passenger door and a third
man wearing a dark shirt climbed out the rear driver’s side door. Another part of
the recording showed Officer Reid handcuff the man in the dark shirt, who he
identified as Gregory Richardson, and Detective Matthew Aiken apprehend the
man in the red shirt, Jackson, as he attempted to climb a barbed-wire fence.
Although the man wearing the light-colored shirt scaled the fence, within a few
minutes, Detective Brian Koenig captured the man, identified him as Jenkins, and
seized a cellular telephone from his pocket.
Laura Schwartzenberger, an agent of the Federal Bureau of Investigation,
recovered from the back seat of the Charger several items connected to the bank
robbery, including sunglasses, a tire iron, two dark-colored shirts, a pair of two-
toned gloves, a blue and white bandanna, a dark knit cap, a black baseball cap, and
white rubber gloves. Inside the glove compartment, Schwartzenberger discovered
documents bearing the name Quinton Johnson. The agent noticed that the Charger,
unlike the Sentra, did not have any damage to its door, ignition, or steering
column.
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Johnson arrived at the scene of the crash and confirmed that he owned the
Charger. Johnson denied having any affiliation with Richardson and allowed a
federal agent to search his cellular telephone. Later, Johnson waived his
constitutional rights and acknowledged that he knew Richardson.
Agents collected other evidence that connected Jenkins and Johnson to the
bank robbery. Agents obtained cellular telephone records showing that Jenkins and
Johnson exchanged about 240 telephone calls during the two months preceding the
robbery and one call moments after its completion, after which Johnson called 911
six times. A fingerprint analyst discovered Jenkins’s fingerprint on a pair of
sunglasses recovered from the Charger and Johnson’s and Richardson’s
fingerprints on a garbage bag used during the robbery.
A grand jury returned a multi-count indictment against all the participants in
the robbery. Richardson pleaded guilty to the robbery of the SunTrust Bank while
using a firearm and to several other bank robberies. 18 U.S.C. §§ 2, 2113(a),
924(c)(1)(A)(ii). Later, the grand jury returned a superseding indictment that
charged Johnson, Jenkins, and Jackson for bank robbery, id. §§ 2, 2113(a), and that
also charged Jackson for using, carrying, and brandishing a firearm during the
robbery, id. § 924(c)(1)(A)(ii).
After the government rested its case, Johnson, Jenkins, and Jackson moved
for a judgment of acquittal. Johnson argued that he was at home during the bank
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robbery. Jenkins argued that no one had identified him inside the bank or at the
scene of the crash and that the government had not connected him to the cellular
telephone used to contact Johnson. Jackson argued that the government failed to
prove a prima facie case of bank robbery or that he used a firearm during the
crime. The district court denied the motions, and the defendants did not present any
evidence on their behalf.
The jury found Johnson, Jenkins, and Jackson guilty of bank robbery, id.
§§ 2, 2113(a), and the jury also found Jackson guilty of brandishing a firearm
during and in relation to the bank robbery, id. § 924(c)(1)(A)(ii). Jenkins and
Jackson filed a motion for a new trial, which the district court denied “because
there was sufficient evidence adduced at trial to support the jury’s verdict.” Jenkins
also moved pro se for a new trial on the ground that the prosecutor during rebuttal
misstated the evidence and insinuated he had personal knowledge of evidence that
Reid “was simply wrong” in concluding Richardson drove the Charger. The
district court denied Jenkins’s motion.
Both Jenkins and Jackson objected to the sentences recommended in their
presentence investigation reports. Jenkins asked the district court to vary
downward from his advisory guideline range of 57 to 71 months and impose a
sentence between 37 and 46 months of imprisonment. After the government
requested a sentence at the high end of Jenkins’s guideline range based on his
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arrest record and dismissed charges that suggested “he is likely to reoffend,”
Jenkins responded that “[t]here are valid reasons why cases get dismissed” and the
government hadn’t provided a “reason of why [his prior charges] were no actioned
or nol-prossed.” Jackson acknowledged that he had a prior conviction in Florida
for battery of a law enforcement officer, but he contested the facts provided in the
presentence report. The government responded that Jackson’s argument
challenging his classification as a career offender lacked merit because his prior
conviction qualified as a crime of violence under the residual clause of the
Sentencing Guidelines. The district court overruled Jenkins’s and Jackson’s
objections. The district court sentenced Jenkins to 71 months of imprisonment and
Jackson to consecutive sentences of 240 months for bank robbery and 120 months
for brandishing a firearm.
II. STANDARDS OF REVIEW
Two standards of review govern this appeal. We review de novo whether a
conviction is supported by sufficient evidence, and we construe the evidence in the
light most favorable to the government. United States v. Jiminez, 564 F.3d 1280,
1284 (11th Cir. 2009). Motions for a new trial based on the weight of the evidence
are reviewed for abuse of discretion. United States v. Martinez, 763 F.2d 1297,
1312 (11th Cir. 1985). Because the denial of a motion for a new trial based on
“prosecutorial misconduct involve[s] mixed questions of law and fact,” the motion
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is “subject to de novo review.” United States v. Noriega, 117 F.3d 1206, 1218
(11th Cir. 1997). “We review de novo whether a defendant’s prior conviction
qualifies as a ‘crime of violence’ under the Guidelines.” United States v. Cortes-
Salazar, 682 F.3d 953, 954 (11th Cir. 2012). “We review the reasonableness of a
sentence for abuse of discretion . . . .” United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010).
III. DISCUSSION
Johnson, Jenkins, and Jackson raise five issues for our review. First, the
three defendants contest the denial of their motions for a judgment of acquittal
based on the insufficiency of the evidence. Second, Jenkins and Jackson argue that
the district court evaluated their motions for new trial under an incorrect legal
standard. Third, Jenkins argues that he was entitled to a new trial because the
prosecutor impermissibly vouched for Carrier’s credibility during rebuttal
argument. Fourth, Jenkins challenges the procedural and substantive
reasonableness of his sentence. Fifth, Jackson contends that he was incorrectly
sentenced as a career offender. These arguments fail. We address each in turn.
The district court did not err by denying Johnson’s and Jenkins’s motions for
a judgment of acquittal. “[D]rawing all reasonable factual inferences in favor of the
jury’s verdict,” as we must, Jiminez, 564 F.3d at 1284, the government proved that
Johnson provided his Dodge Charger as a getaway vehicle and that Jenkins drove
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that vehicle to help his cohorts elude law enforcement, see 18 U.S.C. §§ 2,
2113(a); United States v. Perez, 922 F.2d 782, 785 (11th Cir. 1991). The Charger
did not have any damage evidencing that it had been stolen like the Sentra.
Although Johnson reported that the Charger had been stolen, the jury reasonably
could have rejected Johnson’s report as a ruse and inferred that he aided in the
bank robbery based on the evidence that he waited until the robbery was completed
to report his vehicle as stolen and then lied to the police about when he made that
report; he and Jenkins shared more than 200 telephone calls in the two months
preceding the robbery; he received telephone calls from Jenkins the morning of
and shortly after and in close proximity to the robbery; his and Richardson’s
fingerprints were on a garbage bag used during the robbery; and he falsely denied
associating with Richardson. And the phone calls, Jenkins’s flight from the
Charger, and his fingerprint on a pair of sunglasses worn by the robbers connected
him to the robbery. Jenkins argues that Officer Reid’s testimony established that
Richardson was the driver, but a reasonable jury could have found that Jenkins
drove the Charger. The aerial footage showed a man in a light-colored shirt climb
out the driver’s door of the wrecked Charger, and testimony at trial established that
Jenkins was wearing a gray shirt. In addition, Richardson, who participated in the
robbery, had no time while switching vehicles to change seats with the driver in the
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Charger. Ample evidence supports Johnson’s and Jenkins’s convictions for aiding
and abetting the bank robbery.
The district court also did not err by denying Jackson’s motion for a
judgment of acquittal. Taken in the light most favorable to the government, the
evidence established that Jackson was the gunman during the bank robbery. See
Jiminez, 564 F.3d at 1284. When apprehended, Jackson was wearing a belt that
hung almost to his knees and something blue under his jeans like the robber
wielding the gun in the bank surveillance video. The aerial footage showed
Jackson, who was wearing a red shirt when captured by officers, depart from the
rear passenger door after the Charger stopped, which was consistent with Carrier’s
testimony that a robber wearing a red shirt left the Sentra and climbed into the rear
passenger seat of the Charger. Although the bank employee testified that the
gunman wore a black shirt, the jury reasonably could have inferred that Jackson
removed his black shirt while fleeing from the bank and then left that shirt, the tire
iron, two-toned gloves, and other parts of his disguise in the back seat of the
Charger, where the items were discovered by federal agents. Jackson challenges
Carrier’s credibility, but “credibility determinations are the exclusive province of
the jury,” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). The
evidence was sufficient for a jury to convict Jackson of bank robbery and of
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brandishing a firearm during that crime of violence. See 18 U.S.C. §§ 2, 2113(a),
924(c)(1)(A)(ii).
Even if we were to assume that the district court evaluated Jenkins’s and
Jackson’s motions for a new trial using the standard for a motion for an acquittal,
any error would be harmless because the evidence did not “preponderate . . .
heavily against the verdict.” United States v. Hernandez, 433 F.3d 1328, 1335
(11th Cir. 2005) (quoting Martinez, 763 F.2d at 1312). Jenkins argues that “there
was absolutely no evidence placing [him] in the driver’s seat of the getaway car,”
but the aerial footage, testimony about Jenkins’s attire after his arrest, and Carrier’s
testimony proved that Jenkins drove the Charger. Jackson argues that “Carrier’s
testimony is incredible” because it conflicts with some details he provided during
his 911 call, but discrepancies about whether a robber’s red shirt is hooded or the
exact maneuvers of the Charger are not sufficient reasons to reverse a jury’s
verdict. Jackson argues there is no forensic evidence connecting him to the crime,
but the circumstantial evidence coupled with his flight from the Charger
establishes that the verdict reached by the jury was reasonable. “Because the grant
of a new trial would have been an abuse of discretion, the error of the district court
in employing the wrong standard for a new trial was harmless.” Id. at 1337.
The district court did not err by denying Jenkins a new trial based on the
prosecutor’s statements during his rebuttal argument. The statements were a
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permissible summation of the evidence and response to defense counsel’s
argument. See United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984). The
prosecutor stated that the videotape showed “Jenkins getting out of the front seat of
the Charger at the end of the crash,” explained that “the other individuals found in
that vehicle [were] accounted for from the robbery,” stated that Carrier’s testimony
established that the robbers switched vehicles, and explained that the evidence led
to the inevitable conclusion that “Jenkins . . . drove the car.” To address Jenkins’s
defense that “Sergeant Reid testified that . . . Richardson . . . was the driver,” the
prosecutor argued that Reid “was simply wrong about that” in the light of “the
evidence we saw from that video” and “all the other evidence.” Jenkins argues that
the prosecutor “was indicating a personal belief in [Carrier’s] credibility,” but the
prosecutor simply urged the jury to reach its own “conclusions from the evidence
produced at trial,” id.
Jenkins’s sentence is procedurally and substantively reasonable. Jenkins
argues that the district court violated his right to due process by imposing a
sentence based on unreliable hearsay about his prior arrests, but the district court
sentenced Jenkins with due regard for his “past history with the [c]riminal [j]ustice
[s]ystem,” not the specific wrongdoing of which he had been accused. There is
“[n]o limitation . . . on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States may
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receive and consider for the purpose of imposing an appropriate sentence.” 18
U.S.C. § 3661. Jenkins had two charges pending for carrying a concealed weapon
and identity theft; a prior conviction for possession of marijuana; and eight prior
arrests, one of which involving chasing an officer with a firearm and two of which
involved driving getaway vehicles following robberies of an elderly victim and car
parts stores. The district court reasonably determined that a sentence at the high
end of Jenkins’s advisory guideline range of 57 to 71 months of imprisonment was
required to satisfy the statutory purposes of sentencing. See id. § 3553(a). And
Jenkins’s sentence is well below his statutory maximum sentence of 20 years of
imprisonment, id. § 2113(a), “which is a further indicator the sentence was
reasonable.” See United States v. McKinley, 732 F.3d 1291, 1299 (11th Cir. 2013).
Jenkins argues that the district court “failed to consider the mitigating factors that
[he] identified” at sentencing, but the district court determined those factors were
outweighed by Jenkins’s background and history and “the danger [he] created” by
assisting armed robbers to evade capture and leading officers on a high-speed
chase down a six-lane highway that ended because he struck a bystander’s vehicle,
see 18 U.S.C. § 3553(a)(1), (2). The district court did not abuse its discretion by
sentencing Jenkins to 71 months of imprisonment.
The district court did not err by sentencing Jackson as a career offender.
Jackson acknowledges that we have classified a prior conviction for felony battery
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on a law enforcement officer, Fla. Stat. §§ 784.03, 784.07(2)(b), as a crime of
violence under the residual clause of the career offender guideline. Rozier v.
United States, 701 F.3d 681, 682 (11th Cir. 2012) (explaining our previous,
unpublished holding “that although Rozier’s Florida battery on a law enforcement
officer conviction did not qualify as a crime of violence under the elements clause
of § 4B1.2(a)(1), it did qualify as a crime of violence under the residual clause”).
As we explained in Rozier, the decision of the Supreme Court in Johnson v. United
States, 559 U.S. 133 (2010), “agree[d] with our [earlier, unpublished] conclusion
. . . that the Florida crime of battery on a law enforcement officer is not a crime of
violence under the elements clause of U.S.S.G. § 4B1.2(a)(1) (or its counterpart in
18 U.S.C. § 924(e)(2)(B)(i)).” Rozier, 701 F.3d at 685 (emphasis added). After
supplemental briefing, Jackson concedes that his argument that the residual clause
of the career offender guideline is unconstitutionally vague based on Johnson v.
United States, 135 S. Ct. 2551 (2015), is foreclosed by United States v. Matchett,
802 F.3d 1185 (11th Cir. 2015). As we explained in Matchett, “Johnson is limited
to criminal statutes that define elements of a crime or fix punishments. . . . [T]he
advisory guidelines do neither.” Id. at 1194. Jackson disagrees with our precedents,
but “[u]nder the prior precedent rule, we are bound to follow a prior binding
precedent unless and until it is overruled by this court en banc or by the Supreme
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Court,” United States v. Martinez, 606 F.3d 1303, 1305 (11th Cir. 2010) (quoting
United States v. Vega–Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)).
IV. CONCLUSION
We AFFIRM the convictions and sentences of Johnson, Jenkins, and
Jackson.
15
United States v. Dwayne T. Jackson
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2016-03-31
Citations: 646 F. App'x 877
Copy CitationsCombined Opinion