NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3247
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UNITED STATES OF AMERICA
v.
DEVON BRINKLEY,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-09-cr-00060-004)
District Judge: Honorable Berle M. Schiller
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Submitted Under Third Circuit LAR 34.1(a)
April 25, 2013
Before: JORDAN, GREENBERG and NYGAARD, Circuit Judges.
(Filed: April 26, 2013)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Devon Brinkley appeals a final judgment of conviction and sentence entered by
the United States District Court for the Eastern District of Pennsylvania, sentencing him
to 1,285 months‟ imprisonment for his participation in a conspiracy to commit multiple
armed robberies. For the following reasons, we will affirm.
I. Background
In October 2008, Brinkley and several co-conspirators conducted a series of armed
robberies of Philadelphia-area businesses. The conspirators committed a total of eight
robberies over the course of nine days, and Brinkley personally participated in five of
them. Specifically, between October 10, 2008, and October 18, 2008, he robbed at
gunpoint three Dunkin‟ Donuts stores, a McDonald‟s restaurant, and a Pizza Hut
restaurant.
On October 22, 2009, a grand jury returned an indictment charging Brinkley with
one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951
(Count 1); five counts of Hobbs Act robbery and aiding and abetting, in violation of 18
U.S.C. §§ 1951, 2 (Counts 2, 4, 6, 8, and 10); and five counts of using and carrying a
firearm in furtherance of a crime of violence and aiding and abetting, in violation of 18
U.S.C. §§ 924(c), 2 (Counts 3, 5, 7, 9, and 11). Brinkley and one co-defendant proceeded
to trial, which resulted in the co-defendant‟s acquittal. The jury was unable to reach a
verdict on the charges against Brinkley, however, and the Court declared a mistrial. He
was retried on March 1, 2011, and that second trial again resulted in a hung jury. He
went to trial for a third time on May 10, 2011, following which a jury found him guilty of
all charges.
Due to Brinkley‟s five § 924(c) convictions, he faced a mandatory minimum term
of imprisonment of 107 years (or 1,284 months).1 Following a sentencing hearing on
1
Each § 924(c) conviction carried a mandatory minimum term of imprisonment
that was required to be served consecutively to all other sentences. The first § 924(c)
2
August 9, 2011, the District Court sentenced him to a below-guidelines sentence of 1,285
months‟ imprisonment, one month longer than the mandatory minimum.2 The Court also
imposed five years of supervised release, $20,952 in restitution, a $2,500 fine, and a
$1,100 special assessment. This timely appeal followed.
II. Discussion3
Brinkley raises three issues on appeal. First, he argues that his second and third
trials should have been barred by the Double Jeopardy Clause of the Fifth Amendment.
Second, he contends that the District Court abused its discretion by failing to declare a
mistrial due to a statement made by the government that he alleges bolstered the
credibility of a witness. Third, he maintains that his term of imprisonment constitutes
cruel and unusual punishment, in violation of the Eighth Amendment. We address each
of those arguments in turn.
charge, Count 3, required a seven-year sentence. 18 U.S.C. § 924(c)(1)(A)(ii) (requiring
a minimum sentence of seven years if a firearm is brandished in furtherance of a violent
crime). The four other § 924(c) charges, Counts 5, 7, 9, and 11, all constituted
“subsequent conviction[s]” under that subsection, and therefore each had a mandatory
term of 25 years. Id. § 924(c)(1)(C).
2
The additional month was due to the sentence imposed by the District Court on
Counts 1, 2, 4, 6, 8, and 10 (the conspiracy charge and the robberies themselves). The
Court imposed a one-month term on each count, to be served concurrently. That sentence
was then required to be served consecutively with the terms imposed on the § 924(c)
counts. 18 U.S.C. § 924(c)(1)(D)(ii). The recommended range under the guidelines was
1347 to 1362 months‟ imprisonment.
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We exercise plenary review
over a district court‟s legal conclusions, Love v. Morton, 112 F.3d 131, 133 (3d Cir.
1997), and we review a denial of a mistrial for abuse of discretion, United States v.
Weaver, 267 F.3d 231, 245 (3d Cir. 2001). Objections not raised before the district court
are reviewed for plain error. United States v. Irizarry, 341 F.3d 273, 298 (3d Cir. 2003).
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A. Double Jeopardy
Brinkley contends that he “had an absolute, constitutional right to have the charges
against him decided by one jury in one criminal trial,” and thus that his two retrials
“should have been barred by the Double Jeopardy Clause of the Fifth Amendment.”
(Appellant‟s Br. at 7.) That argument has no merit, because the Supreme Court has made
it clear that “retrial following a „hung jury‟ does not violate the Double Jeopardy Clause.”
Richardson v. United States, 468 U.S. 317, 324 (1984). Such retrials are permissible
because “failure of the jury to reach a verdict is not an event which terminates jeopardy,”
id. at 325, meaning that Brinkley‟s original jeopardy continued until the jury reached a
verdict in his third trial. See also Evans v. Michigan, __ S.Ct. __, No. 11-1327, 2013 WL
610197, at *8 (Feb. 20, 2013) (“[W]hen a defendant persuades the court to declare a
mistrial, jeopardy continues and retrial is generally allowed.”) His second and third trials
were therefore constitutional, and the Double Jeopardy Clause provides no basis for
reversing his conviction.
B. Failure to Declare a Mistrial
Brinkley next contends that the District Court erred by failing to declare a mistrial
“as a result of a statement made by the government that essentially served to bolster the
credibility of its witness.” (Appellant‟s Br. at 8.) The statement at issue is a question
posed by the prosecution following a series of questions regarding a witness‟s criminal
history. After prompting the witness to explain that he had previously been sentenced to
a term of 36 months in an earlier case, the Assistant United States Attorney – who also
happened to have prosecuted the witness – asked, “Do you recall if I asked the Judge for
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a more harsh sentence?” (App. at 10.) Defense counsel objected, the Court sustained the
objection, and the witness never answered the question. Nonetheless, the defense moved
for a mistrial “on the grounds that the mere presentation of that question in the presence
of the jury bolstered the credibility of the witness” and “created the appearance that since
the government requested that the court impose a sentence more severe than three years,
the witness should be viewed more favorably than previous witnesses who had testified
to receiving sentences in excess of eighteen years.” (Appellant‟s Br. at 10.) The District
Court denied that motion but, following closing arguments, instructed the members of the
jury that when an objection has been sustained they should disregard the question “and
not speculate as to what the answer would have been.” (Supplemental App. at 87.)
Brinkley is correct that a prosecutor is not permitted to vouch for a witness, see
United States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998), but that simply did not occur
in this case. The question asked by the prosecutor did not “assure the jury that the
testimony of a government witness [was] credible,” id., and any risk that the jury may
have made such an inference was satisfactorily cured by the jury instruction, United
States v. Univ. Rehab. Servs., Inc., 205 F.3d 657, 668 (3d Cir. 2000) (en banc). In such a
situation, it is well within the District Court‟s discretion to deny a motion for a mistrial.
C. Cruel and Unusual Punishment
Finally, Brinkley argues that his sentence of 1,285 months‟ imprisonment
constitutes cruel and unusual punishment under the Eighth Amendment. As discussed
above, see supra notes 1 and 2 and accompanying text, that sentence was statutorily
required due to his five § 924(c) convictions. See 18 U.S.C. § 924(c) (imposing
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mandatory minimum sentences and requiring that they be served consecutively).
Nonetheless, Brinkley contends that sentencing a 24-year-old man to a 107-year term of
imprisonment is so “disproportionate to the actual crimes that it is shocking to the
conscience,” and thus his sentence must be overturned. (Appellant‟s Br. at 11-12.)
The Eighth Amendment‟s ban on cruel and unusual punishment “prohibits
imposition of a sentence that is grossly disproportionate to the severity of the crime.”
Rummel v. Estelle, 445 U.S. 263, 271 (1980). That “narrow proportionality principle …
applies to noncapital sentences,” Ewing v. California, 538 U.S. 11, 20 (2003) (internal
quotation marks omitted), but “successful challenges to the proportionality of particular
sentences have been exceedingly rare” outside of the context of capital punishment, id. at
21 (internal quotation marks omitted). The Supreme Court has identified four principles
that guide proportionality review: “the primacy of the legislature, the variety of legitimate
penological schemes, the nature of our federal system,” and the fact that the Eighth
Amendment “forbids only extreme sentences that are grossly disproportionate to the
crime.” Id. at 23 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,
J., concurring)) (internal quotation marks omitted). Applying those principles, the
Supreme Court has upheld a mandatory life sentence under a state recidivist statute when
the triggering crime was a conviction for obtaining $120.75 by false pretenses and the
two predicate crimes were similar nonviolent offenses. Rummel, 445 U.S. at 275-76,
285. And in a situation remarkably like this one, we have concluded that, under those
principles, a mandatory 55-year sentence imposed under § 924(c) for two armed
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robberies and a variety of drug charges does not violate the Eighth Amendment. United
States v. Walker, 473 F.3d 71, 82-83 (3d Cir. 2007).
In light of that precedent, we cannot say that the 107-year term of imprisonment
imposed here for multiple armed robberies is, in a constitutional sense, “grossly
disproportionate” to Brinkley‟s five violent and potentially fatal crimes. Ewing, 538 U.S.
at 23 (internal quotation marks omitted). Accordingly, while it is not frivolous to
question the consequence of paying with a lifetime in jail for this nine-day crime spree,
the Eighth Amendment does not bar Brinkley‟s term of imprisonment, and we must defer
to the legislative determination that such a sentence is warranted.
III. Conclusion
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.
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