United States v. Tate

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 30, 2009
No. 09-10288 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 07-00339-CR-CC-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEVIN LAMAR TATE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(October 30, 2009)

Before CARNES, FAY and ALARCÓN,* Circuit Judges.

ALARCÓN, Circuit Judge:

*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
 Kevin Lamar Tate seeks reversal of the district’s judgment of conviction and

its sentencing decision. In a superseding indictment, Tate was charged with

committing four counts of armed bank robbery in violation of 18 U.S.C. § 2113(a)

and (d), one count of bank robbery, in violation of § 2113(a), and four counts of

using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). He

was convicted of four courts of armed bank robbery, three counts of using a

firearm during a crime of violence, and one count of bank robbery. He was

acquitted of one count of using a firearm during a crime of violence.

Tate contends that the district court erred in denying his motion to suppress

the evidence, in failing to elicit from his counsel whether he had any Batson 1

objections, and in concluding that the evidence was sufficient to convince a

rational trier of fact that he was the perpetrator of the crimes alleged in the

indictment. He also argues that the district court erred in its sentencing decisions.

We affirm because we are persuaded that Tate has failed to demonstrate that the

district court erred.

Part One

The Judgment of Guilt

I

1
Batson v. Kentucky, 476 U.S. 79 (1986).

2
 The Evidence Produced During the Trial

A

The facts, viewed in the light most favorable to the Government as the

prevailing party, reflect that on June 26, 2007, a man robbed the Wachovia Bank

branch located at 1270 Caroline Street (the “Caroline Street branch”) in Atlanta,

Georgia. He handed the teller a withdrawal slip and a separate note which stated

“Give me all da (sic) money.” Although he appeared to be unarmed, he threatened

“to blow someone away or blow the place up.”) The teller testified that the bank

robber wore a royal blue outfit, sunglasses, and a blue hat which bore the initials

“LA,” and carried a blue cellular phone.

A bank surveillance photograph showed that the bank robber held the

withdrawal slip in his left hand. A crime scene technician recovered two latent

fingerprints on the withdrawal slip. One of them matched Tate’s left thumb print.

The robber escaped with $3,939.95 of the bank’s money.

On August 9, 2007, a man robbed the Wachovia Bank located at 2349

Chesire Bridge Road (the “Chesire branch”) in Atlanta, Georgia. The bank robber

placed a firearm on the counter in front of the teller. He told her to get a bag and

put money in it or he would shoot her. He also handed the teller two withdrawal

slips. Although the robber wore sunglasses, he pulled them up when he spoke to

3
her. At trial the teller identified Tate as the perpetrator. She also identified the

sunglasses and the “LA” hat recovered by Federal Bureau of Investigation (“FBI”)

agents at Tate’s residence as those worn by him during the robbery. She further

testified that the firearm recovered from Tate’s residence was similar to the one

used to rob her of $1200. An expert testified that one of the latent fingerprints on

the withdrawal slips matched Tate’s fingerprint.

A witness who had supervised Tate while he was employed at a Jiffy Lube

shop testified that Tate was the person depicted in the Chesire branch surveillance

tapes. He also stated that he had seen Tate wear a blue “LA” hat similar to the one

recovered by the FBI at Tate’s residence.

On the same date as the Chesire branch robbery, a man robbed the Wachovia

Bank located at 4099 LaVista Road (the “LaVista branch”) in Atlanta, Georgia,

less than one hour later. A teller testified that the robber handed her an incomplete

withdrawal slip and demanded that she give him her money. She complied and

handed him $3,860.

The robber wore a blue baseball hat and sunglasses which he removed

during the robbery. The teller identified the sunglasses recovered by the FBI as

those worn by the robber. A police crime technician recovered seven latent prints

from the withdrawal slip and ten latent prints from the surface of the bank counter.

4
One matched Tate’s fingerprint.

On August 14, 2007, a man robbed the Wachovia Bank at 3860 Rockbridge

Road (the “Rockbridge branch”) in Decatur, Georgia. The robber wore a “Detroit”

hat and sunglasses. He pointed a firearm at the teller, handed her a withdrawal

slip, and demanded that she give him all of her money. She handed him $1,774.95.

The teller testified that the “Detroit” hat, the sunglasses and the firearm later

recovered by the FBI at Tate’s home resembled those possessed by the man who

robbed the Rockbridge branch bank. A crime scene technician recovered latent

prints from the withdrawal slip. The record shows the withdrawal slip contained

Tate’s thumb print.

The bank teller and the Rockbridge branch manager saw the robber run out

of the bank and enter an old white Chevrolet. Two weeks later, Tate was involved

in a traffic accident. He was driving a 1982 white Chevrolet Monte Carlo. In a

written statement that Tate furnished to the police, Tate wrote “da” instead of the

word “the.”

On September 8, 2007, a robbery occurred at the Best Bank, located at 2875

North Decatur Road, in Decatur, Georgia. A teller testified that the robber pointed

a firearm at her, handed her a withdrawal slip, and demanded: “Give me all the

money, no funny money.” Although the robber wore sunglasses, the teller saw his

5
face because he kept lifting the sunglasses up. He also held a cell phone to his ear.

At trial, she identified Tate as the robber. During the robbery, the robber wore a

red t-shirt and a “Detroit” baseball hat. The teller identified the red t-shirt, the

sunglasses, the Detroit baseball hat, and the firearm seized by the FBI agents from

Tate’s residence as those worn by the bank robber. The teller included a dye pack

in the $860 that she handed to the robber. She counted to ten, and then followed

him to the parking lot where she saw him throw it away after it exploded. As the

robber drove away in a Chevrolet Cobalt, the teller recorded the license tag number

as AEP4779. The getaway car had a green Enterprise Rent-A-Car (“Enterprise”)

sticker on it.

Enterprise’s business records revealed that Tate rented a Chevrolet Cobalt

on September 4, 2007. Tate listed his residence address as 1281 Brochett Road,

Apartment 34, Clarkston, Georgia, and his employer as Jiffy Lube. An Enterprise

employee picked Tate up at his residence. He also made and kept a copy of Tate’s

driver’s license.

FBI Agent Ray Johnson testified that he took Tate’s fingerprints and

photographed the tattoos on his arms after his arrest on September 13, 2007. These

photographs were introduced into evidence. Agent Johnson also testified that he

examined the bank surveillance photographs of the perpetrator of the bank

6
robberies. He stated that the sleeves worn by the person depicted in the bank

surveillance photographs were about three-quarter length and covered his biceps

and his forearms below the elbow. He also testified that the interior of Tate’s

forearm was covered in some of the photographs by the front part of his body, or

was completely obscured because it was below the teller’s counter.

Andrea Elliott testified that she is an FBI physical scientist forensic

examiner. She compared the latent prints recovered from the withdrawal slips

handed by the robber to the tellers at the Caroline Street branch, the Chesire

branch, the LaVista branch and the Rockbridge branch with the fingerprints taken

from Tate by Agent Johnson on September 13, 2007. She testified that it was her

opinion the latent prints were left by Tate.

B

After the Government rested its case in chief, Tate’s trial counsel made an

oral motion for the entry of a judgment of acquittal pursuant to Rule 29 of the

Federal Rules of Criminal Procedure. He argued that the evidence was insufficient

to demonstrate that Tate was the perpetrator of any of the crimes charged against

him. After hearing the prosecutor’s response to the motion, the district court

denied the motion as to each count in the indictment.

II

7
 Tate did not testify. He called two witnesses in presenting his defense.

Wesley Alexander Evans, a former neighbor of Tate’s, testified as his sole

alibi witness. He stated that Tate was a guest at a birthday party on September 8,

2007, the date of the Best Bank robbery. Tate arrived at 9:00 a.m. Mr. Evans

stated that the party did not end until that evening. Mr. Adams did not see Tate

leave throughout that period. Mr. Evans also testified that he could not identify

Tate in any of the bank surveillance photographs. Mr. Evans stated that Tate told

him that in the summer of the year 2007 that he was attending a class on or near

Moreland Avenue.

Mike Hummill testified that he is an investigator with the Federal Public

Defenders Office. He took photographs on September 30, 2008 of tattoos on

Tate’s upper forearms. The photographs were introduced into evidence.

III

Agent Greene was called as a rebuttal witness by the prosecution. He

testified that the Caroline Street branch of Wachovia Bank is located near

Moreland Avenue. This testimony was apparently offered to show that the school

Tate attended in the summer of 2007 is near the Caroline Street branch, which was

robbed on June 26, 2007.

C

8
 After both sides rested, Tate’s counsel renewed his Rule 29 motion for a

judgment of acquittal based on the same reasons he had previously articulated.

The motion was denied.

IV

The Evidence Presented at the Suppression Hearing

At the suppression hearing, the Government introduced the following

evidence. On September 8, 2007, the date the Best Bank was robbed, FBI Agent

Michael Greene began his investigation. He discovered that the Chevrolet Cobalt

used by the robber as a getaway car was owned by Enterprise. On September 10,

2007, an Enterprise employee gave Agent Greene Tate’s home address.

On September 13, 2007, Agent Greene, along with other FBI agents, went to

Tate’s residence. They observed a Chevrolet Cobalt bearing the license number of

the vehicle used to get away from the Best Bank robbery.

The agents knocked on the door and identified themselves. Tate opened the

blinds and looked out the front window next to the door and then fled to the rear of

the living room. The agents had not yet applied for an arrest or a search warrant.

Because they feared that Tate might arm himself, the officers entered Tate’s

residence. Tate briefly resisted arrest. He was subdued and handcuffed.

After the entry, the officers obtained a warrant to search the getaway car and

9
Tate’s residence. In searching the getaway vehicle, the officers observed a dye-

stain on the driver’s seat of the rental car. In searching Tate’s residence, the

officers discovered (1) a blue “LA” baseball cap, (2) a “Detroit” baseball cap, (3) a

blue cellular telephone, (4) a red t-shirt, (5) blue jeans, (6) a pair of sunglasses, and

(7) a firearm.

V

Discussion of the Merits of Tate’s Appeal

A

Tate challenges the denial of his motion to suppress the physical evidence

seized from his residence pursuant to a search warrant. The district court excised

information in the affidavit that referred to evidence obtained during the

warrantless arrest of Tate. 2 He argues that the search warrant was unlawful

because the agent’s “general claim that robbery suspects ‘are known to’ store

evidence of the crime in their homes” was insufficient to establish the required

probable cause to search Tate’s residence. In reviewing a district court’s denial of

a motion to suppress, this court examines the district court’s findings of fact for

clear error and its application of the law to those facts de novo. United States v.

Boyce, 351 F.3d 1102-1105 (11th Cir. 2003).

2
The district court also granted Tate’s motion to suppress evidence obtained as a result of
the warrantless arrest.

10
 As this Court has previously stated, “probable cause to search a residence

exists when ‘there is a fair probability that contraband or evidence of a crime will

be found in a particular place.’” United States v. Jenkins, 901 F.2d 1075, 1080-81

(11th Cir. 1990). “The nexus between the objects to be seized and the premises

searched can be established from the particular circumstances involved and need

not rest on direct observation.” Id. (citation and alteration omitted). “Evidence

that a defendant has stolen material which one normally would expect him to hide

at his residence will support a search of his residence.” Id. (citations and alteration

omitted).

Here, Tate admits that probable cause existed for his arrest and that the

affidavit in support of the search warrant, excluding the excised information,

disclosed that the car parked at Tate’s residence was the getaway car in one of the

robberies and that the car had been leased to Tate. (Br. of Appellant 30). Records

from Enterprise revealed Tate’s home address, his driver’s license number, and his

date of birth. In addition, a veteran FBI agent advised the magistrate judge who

issued the search warrant that, based on the agent’s extensive experience

investigating bank robberies, subjects are known to store evidence of their crime in

their homes and vehicles. The district court properly concluded that the foregoing

information was sufficient to establish probable cause for the issuance of a search

11
warrant.

B

Tate asserts that the district court erred in failing “to provide counsel an

opportunity to provide Batson objections at the end of jury selection.” 3 (Br. of

Appellant 16). Tate’s counsel failed to interpose a timely objection. Under the law

of this Circuit, a defendant forfeits a Batson claim if he or she fails to object on this

ground in the district court. United States v. Chandler, 996 F.2d 1073, 1102 (11th

Cir. 1993).

Tate argues that his counsel did not forfeit the right to present a Batson

claim on appeal because “the district court failed to elicit or even provide counsel

and opportunity to object.” (Br. of Appellant 17). Instead, he contends that “the

court simply seated the 12 chosen jurors in the box, excused the rest of the venire

from the courtroom, and administered the oath to the jury.” Id. To assert a Batson

claim, a defendant must make a prima facie showing that the Government

exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96

(“[T]he defendant first must show that he is a member of a cognizable racial group

. . . and that the prosecutor has exercised peremptory challenges to remove from

3
The Supreme Court instructed in Batson that “[t]he Equal Protection Clause guarantees
the defendant that the State will not exclude members of his race from the jury venire on account
of race . . . .” 476 U.S. at 86.

12
the venire members of defendant’s race.”). Tate’s counsel failed to present any

evidence to the district court that the Government violated the Equal Protection

Clause in exercising its peremptory challenges.

Under the law of this Circuit, a Batson objection must be exercised before

the venire is dismissed and the trial commences. United States v. Rodriguez, 917

F.2d 1286, 1288 n.4 (11th Cir. 1990). Tate requests that this court create a new

rule mandating that district courts provide counsel with an opportunity to raise

Batson objections, similar to the rule announced in United States v. Jones, 899

F.2d 1097, 1102 (11th Cir. 1990), overruled in part on other grounds by United

States v. Morrill, 984 F.2d 1136 (11th Cir. 1993). However, we decline the

invitation. The reasoning in Jones does not apply to Batson objections because the

Jones inquiry is intended to provide the district court with an opportunity “to

correct on the spot any error it may have made” at a sentencing hearing. Id. Here,

there is no evidence that the district court made an erroneous ruling regarding the

prosecution’s peremptory challenges that required immediate correction.

Tate’s counsel’s failure to raise a Batson objection before the district court

forfeited his right to raise this issue on appeal. “The contemporaneous objection

rule fosters finality of judgment and deters ‘sandbagging’ saving an issue for

appeal in hope of having another shot at trial if the first one misses.” United States

13
v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998). This Court has held that “[i]n the

absence of plain error it is not our place as an appellate court to second guess

litigants before us and grant them relief they did not request, pursuant to legal

theories they did not outline, based on facts they did not relate.” Id.

Tate’s counsel has failed to cite any case that would support his contention

that the district court had a duty to inquire of counsel whether he wishes to

interpose a Batson objection. Accordingly, we conclude that Tate has failed to

demonstrate that the trial court committed any error in failing to inquire of Tate’s

counsel whether he had any objection to the challenges.

C

Tate contends that “even if viewed in the light most favorable to the

government, the evidence presented at trial was insufficient to support the

conviction of Mr. Tate.” (Br. of Appellant 21). Tate does not argue that the

Government failed to prove the elements of the crime of robbery, armed robbery,

and the use of a firearm during a crime of violence that resulted in his conviction.

Instead, he maintains that the Government failed to present “sufficient evidence

that Mr. Tate himself was the robber of any of the five banks.” (Br. of Appellant

21). He argues that there is a lack of substantial evidence from which a reasonable

fact finder could find guilt beyond a reasonable doubt. We disagree.

14
 In examining the sufficiency of the evidence, “we view the evidence in the

light most favorable to the government, with all reasonable inferences and

credibility choices drawn in the government’s favor.” United States v. Byrd, 403

F.3d 1278, 1288 (11th Cir. 2005). “A conviction must be upheld unless the jury

could not have found the defendant guilty under any reasonable construction of the

evidence.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1990).

The record contains substantial evidence of Tate’s commission of each of

the charged offenses. Fingerprint evidence on withdrawal slips connected Tate to

the commission of the robbery of the Carolina Street branch, the Chesire branch,

the LaVista branch, and the Rockbridge branch. The tellers at the Chesire branch

and the Best Bank also identified Tate as the bank robber at trial.

A teller and the manager of the Rockbridge branch identified the vehicle

used by the robber as a getaway car as an old white Chevrolet. Tate was involved

in a traffic accident two weeks later driving a 1982 white Chevrolet Monte Carlo.

A teller of the Best Bank saw the robber drive away in an Enterprise rental

car. That car was found at Tate’s residence on the day he was arrested.

Tate also argues the evidence was insufficient because only two of the five

tellers identified him at trial as the bank robber. This argument ignores the

principle that “in determining the sufficiency of the prosecution’s case, we make

15
no distinction between circumstantial and direct evidence.” United States v.

Navarro-Ordas, 770 F.2d 959, 966 (11th Cir. 1985) (quoting United States v. Belt,

678 F.3d 547, 549 (5th Cir. Unit B 1982)). Tate also appears to assert that the jury

could not reasonably infer from the fingerprint evidence on the withdrawal slips

that he was the person who entered the banks and handed the withdrawal slips to

the tellers. He has cited no authority for this proposition. We are persuaded that

the jury was free to draw an inference from his modus operandi that Tate was the

perpetrator of each offense. See United States vs. McDowell, 250 F.3d 1354, 1364

(11th Cir. 2001) (holding that a reasonable inference can be drawn from evidence

showing modus operandi).

Tate argues that “[t]he most important evidence of [his] innocence is the

collection of large tattoos on his firearms.” (Br. of Appellant 25). He asserts that

the fact that no teller mentioned his tattoos demonstrates that he did not rob any of

the banks. Id. The Government presented evidence that supports an inference that

the fact that Tate wore a three-quarter length shirt during the commission of each

robbery, and held his arms next to his body, covered up his tattoos.

Tate also contends that we must reverse his conviction of the Best Bank

robbery because he presented evidence that he was at a neighbor’s home at the

time the crime was committed. The jury heard this testimony, as well as the

16
Government’s evidence that Tate rented a getaway car that was used by the person

who committed the robbery. The jury found that the alibi testimony was not

credible. That finding is binding on this Court. See United States v. Harris, 908

F.2d 728, 734 (11th Cir. 1990) (“Even if a defendant presents alibi testimony, the

jury is free to disbelieve the evidence and reject the defense.”).

Part Two

The Sentencing Decision

The district court sentenced Tate to serve a term of imprisonment of 240

months for the robbery of the Caroline Street branch (Count Nine), and 262

months on each of the robberies of the Chesire branch (Count One), the LaVista

branch (Count Three), the Rockbridge branch (Count Five), and the Best Bank

(Count Seven). Each of these sentences was ordered to be served concurrently.

Tate was ordered to serve a term of 84 months for a violation of § 924(c)(1)(A)(ii)

brandishing a firearm during the commission of a crime of violence as alleged in

Count Two. This sentence was ordered to be served consecutively to the sentences

imposed on Counts One, Three, Five, Seven and Nine. Tate was also sentenced to

serve 300 months for a violation of § 924(c)(1)(A)(ii) as alleged in Count Six,

Counts One, Two, Three, Five, Seven, and Nine, and a term of 300 months for a

violation of § 924(c)(1)(A)(ii), as alleged in Count Eight, to be served

17
consecutively with the sentences imposed on Counts One, Two, Three, Five, Six,

Seven, and Nine. The total sentence of imprisonment imposed by the district court

was 946 months.

A

Tate maintains that the district court erred as a matter of law in concluding

that it was required to sentence him to consecutive terms of imprisonment for each

of his convictions for violating § 924(c)(1)(A)(ii). He contends that the district

court’s construction of that statute “ignores the plain language of the ‘except’

clause.” (Br. of Appellant 31). He argues that the “except” clause . . . makes clear

that the law merely requires a total sentence of 25 years on the multiple violations

of Section 924(c).” Id.

This Court reviews a question of statutory interpretation de novo. United

States v. Rahim, 431 F.3d 753, 756 (11th Cir. 2005). In interpreting a statute, the

court does not “look at one word or term in isolation, but instead [will] look to the

entire statutory context.” United States v. Silva, 443 F.3d 795, 798 (11th Cir.

2006) (citation omitted). A statute is interpreted in a manner that is consistent with

the plain language of the statute, unless it would lead to absurd results. Id.

Section 924(c)(1)(A) in relevant part states:

Except to the extent that a greater minimum
sentence is otherwise provided by this subsection or by

18
any other provision of law, any person who, during and
in relation to any crime of violence or drug trafficking
crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall,
in addition to the punishment provided for such crime of
violence or drug trafficking crime –

(i) be sentenced to a term of imprisonment of not
less than 5 years;

(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.

...

(C) In the case of a second or subsequent conviction
under this subsection, the person shall –

(i) be sentenced to a term of imprisonment of not
less than 25 years; and

(ii) if the firearm involved is a machinegun or a
destructive device, or is equipped with a firearm silencer
or firearm muffler, be sentenced to imprisonment for life.

(D) Notwithstanding any other provision of law –

(i) a court shall not place on probation any person
convicted of a violation of this subsection; and

(ii) no term of imprisonment imposed on a person
under this subsection shall run concurrently with any
other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the
crime of violence or drug trafficking crime during which

19
 the firearm was used, carried, or possessed.

18 U.S.C. § 924(c)(1) (2006) emphasis added).

In his opening brief, filed on April 01, 2009, Tate requested that this Court

adopt the interpretation of the “except” clause in United States v. Whitley, 529 F.3d

150 (2d Cir. 2008) and United States v. Williams, 558 F.3d 166 (2d Cir. 2009).

(Br. of Appellant 33-34). The Second Circuit held in Whitley and Williams that a

consecutive sentence cannot be imposed pursuant to § 924(c) where the defendant

is subjected to a higher minimum sentence under another statute. Whitley 529 F.3d

at 157, and Williams, 558 F.3d at 169-70.

In United States v. Segarra, 582 F.3d 1269 (11th Cir. 2009), this Court

rejected the argument that § 924's “except” language “means that if his mandatory

minimum sentence for the drug offenses is greater than the mandatory minimum

for the firearm offense, the two sentences cannot run consecutively.” Id.

This Court in Segarra noted that every circuit, other than the Second Circuit

itself, to address this issue has rejected its interpretation of the “except” clause. Id.

This Court joined the majority of circuits’ holding that “[g]iven the plain language

of § 924(c) offenses, we do not interpret the “except” clause to limit consecutive

sentences imposed for § 924(c)offenses and the underlying drug crimes.” Id. See

United States v. Easter, 553 F.3d 519, 524-27 (7th Cir. 2009) (affirming

20
consecutive sentences for convictions under §§ 841 and 924(c)), petition for cert.

filed, Nos. 08-9560, 08-10584 (Mar. 26 and May 20, 2009); United States v.

Parker, 549 F.3d 5 (1st Cir. 2008); United States v. Jolivette, 257 F.3d 581, 586-87

(6th Cir. 2001) (upholding consecutive sentences for armed bank robbery and

firearm convictions); United States v. Studifin, 240 F.3d 415, 420-24 (4th Cir.

2001) (affirming sentences for robbery, § 924(c) offenses, and possession of a

firearm by a convicted felon); United States v. Alaniz, 235 F.3d 386, 388-90 (8th

Cir. 2000) (affirming consecutive sentences for convictions of §§ 841 and 924(c)).

In Segarra, the underlying offense was a drug trafficking crime. The

“except” clause in § 924(c)(1)(A) also applies to any crime of violence. See

Jolivette, 257 F.3d at 587 (holding that the imposition of a sentence for a violation

of 18 U.S.C. § 2113(a) and (d) and the mandatory consecutive sentences of 18

U.S.C. § 924(c) does not violate the Double Jeopardy Clause). Therefore, we

reject Tate’s argument that the district court erred in concluding that it was

required by § 924(c)(1)(A)(ii) to impose consecutive sentences for each of his

convictions of using a firearm during the commission of a crime of violence, which

in this case was bank robbery in violation of 18 U.S.C. § 2113.

B

The district court correctly concluded that the applicable guidelines range

21
was 262 to 327 months for the five robberies and 684 months for the three § 924(c)

violations, which produced a total guidelines range of 946 to 1,101 months. Tate

argues that it was unreasonable for the district court to sentence him to any more

than 684 moths, which was the mandatory minimum sentence for the three §924(c)

counts. His argument is, in effect, that it was unreasonable for the district court not

to vary downward under 28 U.S.C. § 3553(a).

We disagree. This court reviews the substantive reasonableness of a district

court’s sentencing determination deferentially for abuse of discretion. Gall v.

United States, 128 S. Ct. 586, 597 (2007); United States v. Pugh, 515 F.3d 1179,

1190 (11th Cir. 2008). A reviewing court must consider the reasonableness of the

sentence “in its entirety, in light of the § 3553(a) factors.” United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006). “[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both the record and the factors in section 3553(a).” United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). The district court need not state that it

“explicitly considered” or discussed each factor. Id. at 786. Instead, “an

acknowledgment by the district court that it has also considered the defendant’s

arguments and the factors in section 3553(a) is sufficient.” Id. Here, the district

court expressly stated that it had considered defense counsel’s argument and the

22
§ 3553(a) factors in sentencing Tate.

At the commencement of the sentencing proceedings, the district court stated

it had read the presentence investigation report and that it had adopted the findings

contained therein.4

Before pronouncing its sentence, the district court stated:

The Court having considered the imposition of a
sentence in this case under the United States Sentencing
Commission Guidelines, as well as those factors outlined
in 18 U.S.C., Section 3553, and the Court having heard
the oral argument of counsel with respect to what
sentence to impose, and the Court having concluded that
a sentence under either the guidelines or pursuant to 3553
factors would be essentially the same, the Court is going
to impose a sentence pursuant to the guidelines because
the guideline range in this case and the designation of the
Defendant as a career offender is fair, just, and
reasonable given the facts and circumstances of this case,
as well as the Defendant’s prior record.

Therefore the Court is going to impose a sentence
at the low end of the guideline range, which is 946
months.

The presentence investigation report disclosed that Tate began his criminal

career at the age of sixteen when he was adjudicated to be a delinquent for

committing criminal mischief in the Allegheny County Juvenile Court, in

4
Tate had objected to paragraph 80 of the presentence investigation report which
qualified him as a career offender. However, the district court eventually overruled Tate’s
objection.

23
Pittsburgh, Pennsylvania. The evidence leading to this conviction shows that he

collided with another vehicle while driving a stolen 1987 Chevrolet S-10 Blazer.

When Tate was seventeen-years old, he was again adjudicated to be a

delinquent on August 8, 1994 for using stolen credit cards to purchase merchandise

valued at $1,032.

Seven months later, while still on probation, Tate was arrested on March 12,

1995 for possession of a controlled substance. Two days later, on March 15, 1995

he was arrested for driving a stolen vehicle, attempting to elude a police officer,

and reckless driving. Tate pled guilty. He received no punishment for that

offense.

Four days later, on March 19, 1995, he was arrested on three counts of

robbery. He was sentenced to five years of imprisonment, less one day, and five

years probation as to each count. Tate was released from custody on April 20,

2000. His period of probation expired on April 28, 2005.

On October 10, 1995, he was arrested for possession with intent to deliver a

controlled substance. He was sentenced to serve not less than nine months and not

more than eighteen months. This sentence was ordered to run concurrently with

sentence he was serving for robbery.

On October 19, 2006, he was arrested for family violence battery, simple

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battery, and disorderly conduct. He pled guilty to simple battery and was

sentenced to twelve months probation on January 2, 2007. While on probation for

that offense, he committed the bank robberies alleged in the second superceding

indictment in this case.

Because Tate was eighteen years of age at the time he committed a robbery

on March 19, 1995, he is a career criminal subject to an enhancement pursuant to

U.S.S.G. § 4B1.1.

The record shows that Tate’s criminal career began when he was a teenager.

It has escalated from unarmed theft crimes to a series of armed robberies during

which he threatened his victims with violence if they did not comply with his

demands. His potential for committing violent acts is also demonstrated by the fact

he resisted arrest for the charges contained in the indictment.

In his request that the district court not impose any additional imprisonment

for the bank robberies, Tate’s defense counsel stressed his client’s “unusually

difficult childhood,” and his educational and work experience. He also stated that

Tate’s mother was a drug addict and that “his father was absent right off the bat.”

Tate’s counsel stated that his client had assisted the Government by providing

information regarding a pending fraud case against another jail inmate. Tate’s

counsel failed to discuss, however, the undisputed evidence that Tate’s criminal

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conduct has escalated from the commission of property crimes to crimes wherein

he has threatened his victims with violence if they refuse his demands. Tate’s

counsel has also failed to acknowledge that Tate has not profited from prior

imprisonment nor has he been responsive to probation supervision. Instead, he

argues that Tate will be more than one hundred years old if he survives a sentence

of 946 months.

In reviewing a sentencing decision for reasonableness, this Court

must first ensure that the district court committed no
significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentence– including an explanation for any
deviation from the Guidelines range.

Gall v. United States, 552 U.S. 38, 597 (2007).

Tate has not challenged the reasonableness of his sentence on procedural

grounds. The parties do not dispute that the applicable sentencing guideline for the

robbery offenses committed by Tate is 946 to 1011 months of imprisonment.

Under the advisory guidelines, the district court could have sentenced Tate to serve

65 months more than the sentence it imposed. Tate’s counsel argued that, in light

of the mandatory sentence of 684 months for the crime of possession of a firearm

during three crimes of violence, any additional punishment for the five bank

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robberies would be substantively unreasonable.

In United States v. Hunt, 526 F.3d 739 (11th Cir. 2008), this court stated:

“Although we do not automatically presume a sentence within the guidelines range

is reasonable, we ‘ordinarily . . . expect a sentence within the Guidelines range to

be reasonable.’” Id. at 746 ((quoting United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005)). Even so, “our ordinary expectation still has to be measured

against the record, and the party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in the light of both that record and

the factors in section 3553(a). Talley, 431 F.3d at 788. Tate has failed to dispel

our ordinary expectation. He has failed to meet his burden of showing that, in

sentencing him to the low range of the applicable sentencing guidelines, the district

court imposed an unreasonable sentence. Considering the totality of the

circumstances, Tate’s sentence was substantively reasonable.

Conclusion

For the foregoing reasons, we affirm the judgment of conviction and the

district court’s sentencing decision.

AFFIRMED.

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