United States v. Joseph Clinton , 547 F. App'x 261 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4117
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH ALEXANDER CLINTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00208-RJC-DSC-1)
Submitted: November 22, 2013 Decided: November 27, 2013
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Alexander Clinton was convicted by a jury of
conspiracy to obstruct, delay, and affect commerce in violation
of 18 U.S.C. § 1951 (2012) (Count 1); obstruct, delay, and
affect commerce and aiding and abetting the same in violation of
§ 1951 and 18 U.S.C. § 2 (2012) (Count 2); and use, carry, and
discharge of firearm in furtherance of a crime of violence and
aiding and abetting the same in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (2012) & § 2 (Count 3). Clinton’s
convictions were based on his participation in the robbery of a
store and his and his co-conspirators flight from police.
Clinton was sentenced to sixty-month concurrent sentences for
Counts 1 and 2 and a ten-year consecutive sentence for the
firearm violation in Count 3, because the court found at
sentencing that the firearm at issue was discharged.
On appeal, Clinton only challenges his 120-month
mandatory minimum consecutive sentence for his § 924(c)
violation. Clinton notes that he was only indicted for, and the
jury was only instructed on, whether he used or carried a
firearm. Thus, he argues, his conviction is now erroneous,
based on the Supreme Court’s later opinion in Alleyne v. United
States, 133 S. Ct. 2151 (2013). While Clinton concedes that the
facts at trial proved that the pistol at issue was brandished,
and, thus, his maximum sentence would be seven years under
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§ 924(c)(1)(A)(ii), he contends that his ten-year mandatory
sentence, under § 924(c)(1)(A)(iii), for discharging the firearm
was erroneous in light of Alleyne. For the reasons that follow,
we affirm.
Defense counsel understandably failed to object to
Clinton’s ten-year sentence on the basis of Alleyne, or a
related Sixth Amendment basis, as that opinion issued after
Clinton was sentenced. Because, however, there was no objection
made on this basis in the district court, Clinton raises the
issue for the first time on appeal and we review the claim for
plain error only. Fed. R. Crim. P. 52(b). The Supreme Court
has held that the plain error standard applies even in cases
where the relevant rule of law was not established until after
trial. See Johnson v. United States, 520 U.S. 461, 464 (1997).
An error in instructing the jury is harmless if it is “clear
beyond a reasonable doubt that a rational jury would have found
the defendant guilty absent the error.” Neder v. United States,
527 U.S. 1, 18 (1999).
To demonstrate plain error, an appellant must show
that (1) there was error, (2) the error was plain, (3) the error
affected his substantial rights, and (4) the error seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings. Johnson, 520 U.S. at 464-66 (citing
United States v. Olano, 507 U.S. 725, 732 (1993)). This Court
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has held that a defendant who failed to preserve his objection
to a flawed instruction “must demonstrate that the erroneous
instruction given resulted in his conviction, not merely that it
was impossible to tell under which prong the jury convicted.”
United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010)
(quotation marks and alterations omitted).
In Alleyne, the Supreme Court held that any fact that
increases the statutory mandatory minimum sentence is an element
of the offense and must be submitted to the jury and found
beyond a reasonable doubt. 133 S. Ct. at 2155. The Alleyne
Court overruled Harris v. United States, 536 U.S. 545 (2002),
which “held that judicial factfinding that increases the
mandatory minimum sentence for a crime is permissible under the
Sixth Amendment.” Alleyne, 133 S. Ct. at 2155. Pursuant to
Alleyne, “any fact that increases the mandatory minimum
[sentence] is an ‘element’ that must be submitted to the jury.”
Id. The Alleyne opinion found that the trial court erred when
it imposed a seven-year mandatory minimum sentence on a § 924(c)
conviction, because the jury had not found the facts supporting
the mandatory minimum beyond a reasonable doubt. Alleyne, 133
S. Ct. at 2156-58. In overruling Harris, the Supreme Court
explained that mandatory minimum sentences increase the penalty
for a crime, and that the facts used to enhance the sentence are
offense elements that “must be submitted to the jury and found
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beyond a reasonable doubt,” before an enhanced mandatory minimum
sentence can be imposed. Alleyne, 133 S. Ct. at 2158.
Here, the jury was only instructed to determine
whether Clinton used, carried, or possessed the firearm that was
used in the robbery. We find the error was not plain, however,
because the overwhelming evidence revealed that the weapon was
also discharged at a police officer as the co-conspirators fled.
Thus, we have no difficulty finding the error in instructing the
jury harmless because it is clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent the
error. Neder, 527 U.S. at 18.
Accordingly, we affirm Clinton’s ten-year sentence for
his § 924(c) violation. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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