[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-10679
JUNE 10, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00162-CR-T-24TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY LAMAR ALBRITTON,
a.k.a. Bobby Albritton,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 10, 2005)
Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Bobby Lamar Albritton appeals his convictions and 678-month total
sentence imposed after he was found guilty of two counts of bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d)(2), two counts of using a firearm during
the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1), and
one count of conspiring to possess, brandish and discharge firearms during a crime
of violence, in violation of 18 U.S.C. §§ 924(o) and (2). The issues on appeal are:
(1) whether the district court erred in permitting the government’s peremptory
challenge, in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986); (2) whether the district court abused its discretion by allowing a lay
government witness to offer his opinion regarding a latent shoeprint; (3) whether
the government committed reversible misconduct during its closing argument; (4)
whether the district court abused its discretion in failing to grant a new trial based
on ineffective assistance of trial counsel; (5) whether the evidence presented at trial
was sufficient to support Albritton’s convictions; (6) whether the district court
erred in finding that Albritton’s prior conviction for felony fleeing and eluding was
a crime of violence, and thus sentencing Albritton as a career offender pursuant to
U.S.S.G. § 4B1.1; and (7) whether the district court’s application of U.S.S.G. §
2B3.1 to enhance Albritton’s sentence constituted plain error warranting reversal in
light of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
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435 (2000).
Albritton was charged with two counts of bank robbery and two counts of
using a firearm during the commission of a violent crime based on his participation
in two alleged bank robberies at the Lakeland (Florida) Bank of America and the
Mulberry (Florida) Suntrust. Albritton was indicted after his co-conspirator, Ava
Jackson, was arrested for trying to cash a stolen traveler’s check. While most of
his co-conspirators pled to their charges, Albritton chose to go to trial.
We have reviewed the record and considered the briefs of the parties, and
conclude that Albritton’s convictions must be affirmed. First, we find no
reversible error in the district court’s rejection of Albritton’s Batson challenge and
find no need to address this issue. Second, the district court did not abuse its
discretion in allowing Agent Harden to testify about a pair of shoes seized from
Jackson’s apartment that allegedly belonged to Albritton. Agent Harden testified
that he had experience tracking foot prints from his days as a border patrol agent in
Yuma, Arizona for the Immigration and Naturalization Service (“INS”). Over
Albritton’s Rule 702 objection, Agent Harden further testified that in his opinion,
the latent shoe print found on the teller counter matched the shoe allegedly
belonging to Albritton. Pursuant to Albritton’s renewed objection to Agent
Harden’s testimony, the district court issued the following limiting instruction to
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the jury:
“ . . . [W]ith regard to the testimony of Special Agent Harden, on the
issue of whether the . . . shoes made the latent print which was taken
from the teller’s counter top in the bank robbery, he was quite candid
in telling us that he could not say definitely or positively that that was
the case. He did give us his opinion, however, and the basis for that
opinion was his perceived similarity which he said he observed
between the shoe sole and the print. You are going to have the same
opportunity to make that observation and assessment to examine the
actual shoes and the prints he examined. You’ll have the same
opportunity to decide whether there is or is not a match between the
shoes and the prints. Therefore, I am instructing you to disregard the
opinion of Special Agent Harden on that subject and be guided by
your own determination and conclusion as to whether the prints were
left by the shoes in Government’s Exhibit 24.”
Albritton has not offered any evidence that the admission of Agent Harden’s
testimony, in light of the contemporaneous, specific limiting instruction, altered the
outcome of his case. Instead, substantial evidence presented by other
co-conspirators’ testimony identifies Albritton as having planned both robberies
and places him at both crime scenes. Under United States v. Fortenberry, 971 F.2d
717, 721-22 (11th Cir. 1992), reversal is not warranted where, as here, untainted
evidence is sufficient grounds upon which to base a conviction.
Third, we conclude that the prosecution’s comments during closing
argument did not constitute reversible misconduct. During its closing argument,
without objection, the prosecution made the following statement regarding
Albritton’s co-conspirator Scotty Carpenter: “He knows that they committed
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violent robberies and he’s afraid and he didn’t want to testify.” Also without
objection, the prosecution repeatedly referred to Albritton and his co-conspirators
as “they,” making statements like “Burns stated that she participated with Mr.
Albritton in the Suntrust bank robbery. Mr. Carpenter identified as a
co-conspirator – he identified everyone, Mr. Albritton in the Suntrust and the Bank
of America robberies as to what they did.” (emphasis added).
Where, as here, a defendant fails to object to allegedly prejudicial statements
made during closing argument, we review for plain error. United States v. Wilson,
149 F.3d 1298, 1302 n.5 (11th Cir. 1998). Albritton has failed to show the that the
statements affected his substantial rights because there is substantial evidence that
without those statements, Albritton still would have been convicted. Wilson, 149
F.3d at 1301, United States v. Hasner, 340 F.3d 1261, 1275 (11th Cir. 2003)
(citation omitted), cert. denied,125 S.Ct. 38 (2004). Accordingly, we affirm on this
issue.
Fourth, as the record has not been well-developed, we find that Albritton’s
ineffective assistance of counsel claim is premature, and we do not consider it here.
“We will not generally consider claims of ineffective assistance of counsel raised
on direct appeal where the district court did not entertain the claim nor develop a
factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)
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(citing United States v. Khoury, 901 F.2d 948, 969 (11th Cir. 1990)). The
appropriate vehicle for this claim is through a 28 U.S.C. § 2255 motion to vacate.
Fifth, we also reject Albritton’s sufficiency of the evidence claim. At trial,
tellers from both the Lakeland Bank of America and the Mulberry Suntrust
testified that several disguised men had stormed the banks, carrying guns and
announcing that a robbery was in progress. Two tellers suffered serious injuries
during the robberies: a pregnant teller at the Lakeland Bank of America was hit
over the head with the butt of a gun with enough force to split her scalp, and a
teller at the Suntrust Mulberry suffered a heart attack, which caused permanent
heart damage.
In addition to the tellers’ testimony, several of Albritton’s co-conspirators
testified against him. Jackson and CaCentra Burns, both of whom Albritton had
enlisted to “scope out” the Mulberry Suntrust, testified that they had been present
when Albritton and his co-conspirators divided the proceeds from the Lakeland
Bank of America robbery. Jackson further testified that she had given Albritton
several items to use as a disguise during the robberies. She also testified that after
the Lakeland Bank of America robbery, Albritton had given her three guns to hide
in her apartment. Two participants in the robberies, Scotty Carpenter and DJ
Vickers, testified that Albritton had participated in the planning of the robberies,
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and Carpenter indicated that the whole scheme had been Albritton’s idea in the
first place. Carpenter further testified that it had been everyone’s idea to carry a
gun during the robberies, and that they had all carried guns during both robberies.
After examining various photographic exhibits proffered by the government,
Jackson, Burns, Carpenter, and Vickers were all able to identify a man jumping
over the teller counters and actively participating in both robberies as Albritton.
Based on this record, we find that sufficient evidence was presented to support
Albritton’s conviction.
Sixth, we find that the district court did not err in finding that Albritton’s
prior state court conviction for aggravated fleeing and eluding was a crime of
violence, and thus sentencing Albritton as a career offender under U.S.S.G. §
4B1.1 (2000). Under the guidelines, a “crime of violence” is defined as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year that (1) has
as an element the use, attempted use, or threatened use of
physical force against the person of another; or (2) is
burglary of a dwelling, arson, or extortion, involves the
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a). The Florida aggravated fleeing and eluding statute under
which Albritton was convicted requires that a person “[a]s a result of such fleeing
or eluding, causes injury to another person or causes damage to any property
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belonging to another person.” Fla. Stat. Ann. § 316.1935(4) (West 1999). Because
Albritton’s conviction for aggravated fleeing and eluding necessarily required
damage to persons or property, we agree that the crime “present[ed] a serious
potential risk of physical injury to another.” § 4B1.2(a)(2). Cf. Leocal v. Ashcroft,
125 S.Ct. 377, 383 & n.7 (2004) (finding that DUI conviction was not “crime of
violence” under 18 U.S.C. § 16, but distinguishing § 16 “crime of violence”
definition from that of U.S.S.G. § 4B1.2(a)(2), noting § 4B1.2(a)(2)’s greater focus
on the “possible effect of a person’s conduct,” and that § 4B1.2(a)(2) does not
require “use” of force in committing the offense in the manner that § 16 does).
Thus, the district court did not err in using Albritton’s prior conviction for
aggravated fleeing and eluding as a predicate for enhancing Albritton’s sentence as
a career offender under § 4B1.1.
Finally, we consider Albritton’s objection, made for the first time on appeal,
that Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004) renders his
sentence unlawful. After briefing was completed, the Supreme Court decided
Booker v. United States, __ U.S. __, 125 S. Ct. 738 (2005). Because Albritton
raised his Blakely/Booker-type challenge for the first time on appeal, we review it
for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005); see also Booker, 125 S.Ct. at 769 (both Sixth Amendment and remedial
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holdings must apply to all cases on direct appeal).
Some facts necessary to support Albritton’s sentences — which exceeded
the maximum authorized by the facts established by Albritton’s guilty plea — were
not found by a jury beyond a reasonable doubt or admitted by Albritton, and did
not constitute prior convictions. Thus, the sentences violated the Sixth
Amendment. Booker, 125 S.Ct. at 756. Additionally, in sentencing Albritton, the
district court followed the mandatory Sentencing Guidelines scheme. That, too,
was error under Booker. See Rodriguez, 398 F.3d at 1300. Both errors were
“plain.” See Johnson v. United States, 520 U.S. 461, 468, (1997) (“Where the law
at the time of trial was settled and clearly contrary to the law at the time of
appeal--it is enough that the error be 'plain' at the time of appellate
consideration."); see also Rodriguez, 398 F.3d at 1299. However, Albritton cannot
satisfy the third prong of the plain error test under Rodriguez, that his substantial
rights have been affected. Having reviewed the transcript of Albritton’s sentencing
hearing, we find no indication that the district court judge would have sentenced
Albritton to a lower sentence if he had been working under an advisory guidelines
scheme. Therefore, his Blakely/Booker challenge must fail.
Albritton’s conviction and sentence are, therefore, AFFIRMED.
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TJOFLAT, Circuit Judge, concurring specially:
As the court properly holds, in enhancing Albritton’s sentences on the basis
of facts that were neither found by a jury beyond a reasonable doubt nor admitted
by the defendant, the district court committed Booker error that is plain. Ante at
___. Turning to the third prong of the plain-error inquiry, the court “finds no
indication” that the court would have sentenced Albritton to lower sentences if it
had been working under an advisory rather than a mandatory guidelines scheme.
Ante at ___.
As I explain in my dissent to the court’s refusal to rehear Rodriguez en banc,
the enhancement of a defendant’s sentence on the basis of facts the defendant
neither admits nor the jury finds beyond a reasonable doubt is structural error;
hence, the third prong of the plain-error test is inapplicable. See United States v.
Rodriguez, — F.3d —, 2005 WL 895174 (11th Cir. Apr. 19, 2005) (Tjoflat, J.,
dissenting from the denial of rehearing en banc). We therefore should move to the
fourth prong of the plain-error test and consider whether the error “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed.2d
508 (1993). We decline to take that step, however, because the prior-panel rule
requires that we adhere to Rodriguez.
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