[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2007
No. 06-15904 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00128-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER LASHAWN BOHANNON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 18, 2007)
Before DUBINA, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Alexander Lashawn Bohannon appeals his convictions for
carjacking, in violation of 18 U.S.C. § 2119, and using a firearm during the
commission of a crime of violence, in violation of 18 U.S.C. § 924(c), and his
resulting consecutive life sentences. Bohannon argues on appeal that, in light of
Holloway v. United States, 526 U.S. 1, 119 S. Ct. 966, 143 L. Ed. 2d 1 (1999),
there was insufficient evidence to allow a reasonable jury to conclude that he
intended to take the car when the victim was shot, and that taking the victim’s car
was a mere afterthought. Bohannon therefore argues also that the evidence was
insufficient to convict him of carjacking and using a firearm during a carjacking.
Bohannon next argues that his consecutive sentences of life imprisonment
are unreasonable. Specifically, he argues that his sentence is unreasonable because
the second life sentence amounts to a variance that is well above the 25-year
sentence set forth in the guidelines for violating § 924(c).
We review a challenge to the sufficiency of the evidence de novo. United
States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). When reviewing the
sufficiency of the evidence, the inquiry is “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In so
doing, we resolve all reasonable inferences and credibility choices in favor of the
2
jury’s verdict. United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000).
Moreover, as long as the testimony is not incredible as a matter of law, we must
accept the jury’s conclusions. United States v. Calderon, 127 F.3d 1314, 1325
(11th Cir. 1997).
“In order to be convicted of carjacking under 18 U.S.C. § 2119, the
government must prove that the defendant (1) with intent to cause death or serious
bodily harm (2) took a motor vehicle (3) that had been transported, shipped or
received in interstate or foreign commerce (4) from the person or presence of
another (5) by force and violence or intimidation.” United States v. Diaz, 248 F.3d
1065, 1096 (11th Cir. 2001). The required mens rea element for carjacking was
later clarified by the Supreme Court in Holloway v. United States, 526 U.S. 1, 119
S. Ct. 966, 143 L. Ed. 2d 1 (1999): “The intent requirement of [18 U.S.C. §] 2119
is satisfied when the Government proves that at the moment the defendant
demanded or took control over the driver’s automobile[,] the defendant possessed
the intent to seriously harm or kill the driver if necessary to steal the car[.]” Id. at
12, 119 S. Ct. at 972. “The defendant’s intent is to be judged objectively from the
visible conduct of the actor and what one in the position of the victim might
reasonably conclude.” United States v. Fulford, 267 F.3d 1241, 1244 (11th Cir.
2001).
3
We have also held that “any defendant who possesses a firearm within the
meaning of section 2119 necessarily uses or carries it as defined in § 924(c)(1).”
United States v. Moore, 43 F.3d 568, 572 (11th Cir. 1994) (internal quotation and
citation omitted). Therefore, if sufficient evidence supports a conviction for
carjacking, it necessarily follows that sufficient evidence supports a conviction for
possessing a firearm. See id.
Here, the record demonstrates that there was sufficient evidence for a
reasonable jury to conclude that Bohannon intended to harm the victim if necessary
to steal his car. Although Bohannon argues that the victim was not in the car, the
testimony of two witnesses placed the victim in or near the car when the struggle
between the victim and Bohannon began. The jury could have reasonably inferred
that the victim was in the car when the struggle began. See Rodriguez, 218 F.3d at
1244. Bohannon’s argument that he essentially intended to rob the victim, and that
he took the car as a mere afterthought, fails. First, even if a robbery had been the
primary objective, it does not automatically render the taking of the car as an
afterthought. The car could have been an integral part of the robbery as a
necessary means of escape. See Diaz, 248 F.3d at 1096 (noting that gaining
control of the victim’s car was an essential element in an extortion scheme and not
a mere afterthought). Second, Bohannon’s previous conviction for carjacking that
4
was introduced at trial also supports the finding of intent. Third, Bohannon’s
suggestion that the victim’s previous drug conviction supported the conclusion that
Bohannon’s intent was to rob the victim for his drug proceeds is without merit
because Bohannon presented no evidence that the victim had possession of any
drugs or cash at the time of the shooting. Fourth, Bohannon’s reliance on a
witness’s testimony that she anticipated a robbery is misplaced because the witness
admitted that she could not hear the verbal exchange between Bohannon and the
victim, and only saw them fighting. The witness’s characterization of the incident
as a robbery is not dispositive. Fifth, the victim’s statement to Bohannon that he
did not have anything supports the conclusion that the victim did not realize
Bohannon wanted the car, but it does not necessitate the conclusion that Bohannon
merely intended to rob the victim, as opposed to harming him in order to take the
car. Finally, quickly disposing of the car does nothing to negate Bohannon’s intent
to harm the victim, because the jury could have inferred that it showed Bohannon
realized he needed to seek medical attention and create an alibi. See Rodriguez,
218 F.3d at 1244. Based on the foregoing, a rational juror could have found
beyond a reasonable doubt that Bohannon intended to harm the victim in order to
take the car. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Moreover, since there is sufficient evidence to support Bohannon’s
5
conviction for carjacking, it necessarily follows that there is sufficient evidence to
support Bohannon’s conviction for using a firearm during a carjacking. See
Moore, 43 F.3d at 572.
The Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125
S. Ct. 738, 160 L. Ed. 2d 621 (2005), requires us to review final sentences for
reasonableness in light of the factors listed in 18 U.S.C. § 3553(a). Id. at 261, 125
S. Ct. at 765-66. When evaluating the reasonableness of a sentence, we consider
the factors outlined in 18 U.S.C. § 3553(a) and the district court’s reasons for
imposing the particular sentence. United States v. Williams, 456 F.3d 1353, 1360-
61 (11th Cir. 2006), petition for cert. filed, (U.S. Oct. 19, 2006) (No. 06-7352).
Unreasonableness may be procedural or substantive. United States v. Hunt,
459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence may be procedurally
unreasonable if “it is the product of a procedure that does not follow Booker’s
requirements, regardless of the actual sentence.” Id. Moreover, a sentence may be
procedurally unreasonable if the district court failed to consider the relevant
§ 3553(a) factors, which include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
6
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The district court is
not required to discuss each § 3553(a) factor. Id. “[A]n acknowledgment by the
district court that it has considered the defendant’s arguments and the factors in
section 3553(a) is sufficient under Booker.” Id.
A sentence “may be substantively unreasonable, regardless of the procedure
used.” Hunt, 459 F.3d at 1182 n.3. “When reviewing the length of a sentence for
reasonableness, we will remand for resentencing if we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” Williams, 456 F.3d at
1363. “[T]here is a range of reasonable sentences from which the district court
may choose” and the burden of establishing that the sentence is unreasonable in
light of the record and the § 3553(a) factors lies with the party challenging the
sentence. Talley, 431 F.3d at 788. Although a sentence within the guideline range
is not per se reasonable, “when the district court imposes a sentence within the
advisory Guidelines range, we ordinarily will expect that choice to be a reasonable
one.” Id. at 787-88. “[A]fter a district court correctly calculates the Guidelines
7
range . . . it may consider imposing a more severe or more lenient sentence.”
United States v. McVay, 447 F.3d 1348, 1353 (11th Cir. 2006).
Additionally, “[t]he weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court.” Williams, 456 F.3d
at 1363. We will not substitute our judgment in weighing the relevant factors. Id.
“[The] district court may determine, on a case-by-case basis, the weight to give the
Guidelines, so long as that determination is made with reference to the remaining
section 3553(a) factors that the court must also consider in calculating the
defendant’s sentence.” United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir.
2006).
An extraordinary departure from the Guidelines range, based on the
§ 3553(a) factors, must be supported by extraordinary circumstances. McVay, 447
F.3d at 1357. The maximum allowable sentence is the sentence established by
statute, not the sentence established by the sentencing guidelines. See United
States v. Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005) (recognizing that the
statutory maximum sentence, not the guideline sentence, is the maximum sentence
permitted by law).
It is unclear whether Bohannon challenges his sentence as either
procedurally or substantively unreasonable. Nevertheless, his sentence is both
8
substantively and procedurally reasonable. As for being procedurally reasonable,
the record shows that the district court correctly calculated the guideline range and
adequately and properly considered the § 3553(a) factors. Bohannon does not
dispute that the district court correctly computed the guideline range to be life for
the carjacking, plus a consecutive 25-year sentence for the firearm conviction.
Second, the district court stated that it had considered all of the 3553(a) factors in
determining Bohannon’s sentence. The district court’s statements were sufficient
to show that it had considered the § 3553(a) factors, and the district court was not
required to separately address each § 3553(a) factor. See Talley, 431 F.3d at 786.
Since the district court correctly computed the guidelines range and considered all
the § 3553(a) factors, Bohannon’s sentence is procedurally reasonable.
Moreover, Bohannon’s consecutive second life sentence is substantively
reasonable because it does not illustrate clear error of judgment in the district
court’s weighing of the § 3553(a) factors. See Williams, 456 F.3d at 1363. The
district court discussed Bohannon’s violent history and noted his previous
conviction of carjacking and his injuring a prison guard to the point the guard was
permanently disabled. The district court accepted Bohannon’s retardation, and it
considered the opinion of Bohannon’s expert that any rehabilitation would be
undone if he returned to his previous environment. The district court noted that it
9
was in a unique position, since it had sat through Bohannon’s two trials for two
separate carjackings. The district court noted also that Bohannon was wanted for a
separate carjacking when he committed the instant carjacking, and that this conduct
showed a continued disrespect for the law. The district court concluded that
Bohannon had an “absolute disregard for human life.” The district court explained
that it had to fashion a sentence that would reflect the seriousness of the offense,
promote respect for the law, provide just punishment, provide adequate deterrence,
and protect the public. The district court concluded that the proper sentence
necessary to protect the public and provide just punishment was two consecutive
life sentences. Bohannon also does not prevail on his argument that the court
failed to give proper weight to his history and characteristics, as we will not
substitute our judgment in weighing the relevant factors. See Williams, 456 F.3d at
1363. Based on the district court’s judgment in weighing of the § 3553(a) factors,
Bohannon’s consecutive second life sentence is substantively reasonable.
Finally, extraordinary circumstances can merit an extraordinary variance,
and Bohannon’s lengthy and significant violent criminal history merited his second
consecutive life sentence. See McVay, 447 F.3d at 1357.
For the above-stated reasons, we affirm Bohannon’s convictions and
sentences.
10
AFFIRMED.
11