Case: 12-16268       Date Filed: 06/09/2014       Page: 1 of 27


                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-16268
                               ________________________

                         D.C. Docket No. 1:12-cr-20367-FAM-2

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                             versus

SHEROND DURON KING,
a.k.a. Ron,
a.k.a. Shearon King,
a.k.a. Shearond King,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                        (June 9, 2014)

Before HULL, BLACK and FARRIS, * Circuit Judges.

PER CURIAM:



       *
         Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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      Sherond Duron King, Jr., appeals his convictions and sentences arising from

a string of armed robberies he committed in July 2011. Specifically, a jury

convicted King of (1) conspiring to interfere with commerce by robbery, in

violation of 18 U.S.C. § 1951(a); (2) obstructing interstate commerce by robbing

My Dream Coin Laundry, in violation of 18 U.S.C. § 1951(a); (3) using, carrying,

or possessing a firearm in furtherance of the My Dream Coin Laundry robbery, in

violation of 18 U.S.C. § 924(c)(1)(A); (4) obstructing interstate commerce by

robbing a MetroPCS store, in violation of 18 U.S.C. § 1951(a); (5) using, carrying,

or possessing a firearm in furtherance of the MetroPCS robbery, in violation of 18

U.S.C. § 924(c)(1)(A); (6) obstructing interstate commerce by robbing a Subway

store, in violation of 18 U.S.C. § 1951(a); (7) using, carrying, or possessing a

firearm in furtherance of the Subway robbery, in violation of 18 U.S.C.

§ 924(c)(1)(A); (8) obstructing interstate commerce by robbing a BP gas station, in

violation of 18 U.S.C. § 1951; and (9) using, carrying, or possessing a firearm in

furtherance of the BP robbery, in violation of 18 U.S.C. § 924(c)(1)(A). The

district court sentenced King to a total of 1,062 months’ imprisonment, and he now

pursues numerous issues on appeal. We conclude the arguments King raises on

appeal fail, and we therefore affirm his convictions and sentences.




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                                       I. BACKGROUND

      On July 9, 2011, King and another man, Graylin Kelly, robbed My Dream

Coin Laundry in Miami Shores, Florida. 1 According to Nickelson Charles, an

employee of the laundromat who was working that night, King was wearing a

white tank top and had dreadlocks while Kelly was wearing a jacket. The two men

entered the store and walked around the laundromat for 10 to 20 minutes.

Eventually, one of the men asked Charles to make change and, once he opened the

cash register, King pointed a gun at Charles’s face and demanded the money from

the register. After King again demanded that Charles turn over the money and

threatened to shoot him, Charles opened the cash register and gave King all of the

money in the drawer.

      Several days after the robbery, Charles identified King as the robber from a

photographic lineup. Charles was unable to identify Kelly, but stated he could not

forget King’s face. Detective Kerry Turner with the Miami Shores Police

Department created the lineup by using six photographs, including a picture of

King from his recent booking following his arrest. In the array, King is shown

wearing a white tank top. Detective Turner testified that he chose not to use

King’s driver’s license photograph because the booking photograph was more




      1
          Kelly pled guilty and is not a party to the instant appeal.
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recent. In selecting the photographs for the array, Detective Turner looked for

individuals with similar facial features and hairstyles.

      On July 12, 2011, three days after the My Dream Coin Laundry robbery,

King and Kelly robbed a MetroPCS store. After the men entered the store, King

approached the store manager. King pulled out a gun, pointed it at the manager,

and told him to “open the safe.” The manager put the cash register box on the

counter and stared at King. In response, King pointed the gun at the manager and

said “don’t look at me, don’t look at me.” King and Kelly then took the money

and ran out of the store.

      Subsequently, a police officer showed Judith Brea, an employee who was

present in the store at the time of the robbery, a photographic lineup. Brea

immediately identified King as one of the robbers. The officer also showed Jose

Enrique Lantigua, the store manager, a photographic lineup from which he

identified King as the robber.

      Later on July 12, 2011—the same day as the MetroPCS robbery—King and

Kelly robbed a Subway store. The men entered the store and looked around.

While Arthur Joseph, an employee at the Subway, waited for King and Kelly to

decide what to order, another Subway employee, Treniese Stubbs, was working at

the cash register. When Stubbs opened the cash register, King suddenly pulled out

a gun, pointed it at her head, and demanded the money from the register. After


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taking the money, the men ran out of the store. Several days after the robbery, a

police officer showed Joseph a photographic lineup from which Joseph identified

King as the man who pointed a gun at Stubbs and demanded the money. An

officer also showed Stubbs a photographic lineup from which she identified King

as the man who pointed a gun at her and took the money from the cash register.

      On July 13, 2011, the day after the Subway and MetroPCS robberies, King

and Kelly robbed a BP gas station. After entering the store at the gas station, King

waited in line at the cash register until he reached the front of the line, at which

point he aimed a gun at Wilmer Pineda, the employee working the cash register,

and demanded the money from the register. King took the money from the cash

register and he and Kelly left the store. Approximately one week after the robbery,

Pineda identified King from a photographic lineup as the man who took the money

from the register. Fanor Saravia, a man who maintained the landscaping at the BP

station and who was present inside the store during the robbery, also identified

King from a photographic lineup as one of the robbers.

      A federal grand jury returned an indictment charging King with conspiring

to rob, as well as actually robbing, the My Dream Coin Laundry, the MetroPCS

store, the Subway store, and the BP gas station. The indictment also charged King

with knowingly using, carrying, or possessing a firearm in furtherance of each of

the robberies.


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       Prior to trial, King filed a motion to suppress the witnesses’ out-of-court

identifications of him and to prohibit the witnesses from identifying him in court.

King argued the procedures used during the photographic lineups were unduly

suggestive and that the witnesses’ identifications were not reliable. Following an

evidentiary hearing, the district court denied the motion to suppress. 2

       King’s case proceeded to trial. After the Government rested its

case-in-chief, King moved for a judgment of acquittal on the firearms counts,

arguing there was insufficient evidence the gun he used was real and met the

statutory definition of a firearm. The district court denied the motion, and,

following the close of the defense case, King renewed his motion for a judgment of

acquittal. The district court again denied the motion, and the jury found King

guilty on all counts.

       At the sentencing hearing, using information from the presentence

investigation report, the district court calculated a base offense level of 24 for

King’s conspiracy and robbery convictions and determined King had a criminal

history category of III, yielding a guidelines range of 63 to 78 months’

imprisonment. King’s guidelines range on the firearms convictions was a

mandatory 984-month sentence, composed of a consecutive seven-year sentence

       2
         The district court again denied the motion to suppress after hearing the trial testimony,
finding that the photographic lineups were not unduly suggestive and that the identifications
were reliable.

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on Count Three for brandishing a firearm, and consecutive terms of 25 years’

imprisonment for each of his three other firearms convictions (Counts Five, Seven,

and Nine). King’s resulting guidelines range was 1,047 to 1,062 months’

imprisonment.

      King objected to the seven-year mandatory minimum sentence for

brandishing a firearm, arguing that based on the Supreme Court’s decision in

Apprendi v. New Jersey, 

, 

(2000), and under the Fifth

and Sixth Amendments, the element of “brandishing” had to be charged in the

indictment and found by the jury beyond a reasonable doubt. King recognized

that, at the time, his argument was foreclosed by Supreme Court precedent, but he

nonetheless raised the objection to preserve the issue in light of the Supreme

Court’s then-recent grant of certiorari in Alleyne v. United States, 

(2012).

      The district court sentenced King to a total sentence of 1,062 months’

imprisonment. King’s total sentence was comprised of concurrent terms of 78

months’ imprisonment on the conspiracy and substantive robbery counts (Counts

One, Two, Four, Six, and Eight); a consecutive term of 84 months’ imprisonment

on his first firearm count (Count Three); and 300 months’ imprisonment on each of

his three other firearms counts (Counts Five, Seven, and Nine), which were




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imposed to run consecutively to his other sentences and to each other. King

objected to the reasonableness of the sentence and this appeal followed.

                                   II. ANALYSIS

      King raises six issues on appeal. He argues that (1) the Government did not

present any evidence the gun he used during the four robberies met the legal

definition of a firearm and his § 924(c) convictions should therefore be vacated;

(2) the district court abused its discretion by refusing to give a jury instruction

regarding cross-race identifications; (3) the district court should have excluded

Charles’s identification of King because the photo array used to obtain the

identification was unduly suggestive; (4) the cumulative effect of the district

court’s purported errors requires reversal; (5) the district court erred by imposing

mandatory minimum sentences on his firearm offenses because the jury did not

find he brandished a firearm beyond a reasonable doubt, nor did it find his other

firearm convictions were “second or subsequent”; and (6) his sentence is

unreasonable. We address each issue in turn.

A. Legal Definition of a Firearm

      King argues that because the police never recovered the gun he used during

the robberies and the Government did not introduce the gun into evidence at trial,

no evidence existed that the gun met the legal definition of a firearm codified in 18




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U.S.C. § 921(a)(3).3 He contends the lay testimony of the victims of the robberies

was insufficient to prove beyond a reasonable doubt that the gun was designed “to

expel a projectile by the action of an explosive.”

       King’s argument is foreclosed by this Court’s decision in United States v.

Woodruff, 

, 1049 (11th Cir. 2002). In Woodruff, we rejected the

identical argument King now asserts, holding that “the [G]overnment need not

show to a scientific certainty that a defendant is carrying a device that fires

projectiles by means of an explosive.” 

[G]overnment need not offer

the gun itself into evidence or produce an expert witness to identify a ‘firearm.’”

Government must present sufficient testimony, including the

testimony of lay witnesses, in order to prove beyond a reasonable doubt that a

defendant used, possessed or carried a ‘firearm’ as that term is defined for

purposes of § 924(c).” 

evidence in the light most favorable to the Government and

drawing all reasonable inferences in favor of the jury’s verdict, see United States v.

Isnadin, 

, 1303 (11th Cir. 2014), sufficient evidence established that

       3
           Section 921(a)(3) defines a firearm as:

       (A) any weapon (including a starter gun) which will or is designed to or may
       readily be converted to expel a projectile by the action of an explosive; (B) the
       frame or receiver of any such weapon; (C) any firearm muffler or firearm
       silencer; or (D) any destructive device. Such term does not include an antique
       firearm.

18 U.S.C. § 921(a)(3).
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the gun King used in each of the robberies was a firearm within the meaning of

§ 921(a)(3). The jury heard testimony from victims of each of the robberies,

several of whom had the weapon thrust directly in their faces. Each of the seven

eye witnesses testified that King pointed a gun during the commission of the

offense, and the record also indicates that the jurors saw surveillance footage and

still photographs of each armed robbery. Contrary to King’s arguments, in order to

carry its burden of proof on the § 924(c) counts, the Government did not need to

rely on expert testimony, introduce the weapon at trial, or otherwise demonstrate

that the gun used during the robberies was actually fired or discharged. 

. On this record, we are satisfied that a reasonable trier of fact

could find the evidence established King was guilty of the § 924(c) offenses

beyond a reasonable doubt. See 

(“Evidence is sufficient

to support a conviction if a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.” (internal quotation marks omitted)).

B. Jury Instruction on Cross-Race Identification

      King contends the district erred by refusing to give a jury instruction

regarding the unreliability of cross-race identifications. King argues his theory of

defense was premised on the fact that he is an African-American man and that the

witnesses who identified him were not African-American individuals, thus

rendering their identifications inherently unreliable.


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      We review for abuse of discretion a district court’s refusal to give a

requested jury instruction. United States v. McQueen, 

, 1154 (11th

Cir. 2013). A criminal defendant is entitled to have the jury instructed regarding

his theory of defense “separate and apart from instructions given on the elements

of the charged offense if there has been some evidence adduced at trial relevant to

that defense.” 

marks omitted). We view the evidence in the

light most favorable to the defendant in determining whether there was a proper

evidentiary foundation for the instruction. United States v. Palma, 

,

1315 (11th Cir. 2008). When a district court declines to give a requested

instruction for which there was a sufficient evidentiary basis, we will reverse “only

if (1) the requested instruction correctly stated the law; (2) the actual charge to the

jury did not substantially cover the proposed instruction; and (3) the failure to give

the instruction substantially impaired the defendant’s ability to present an effective

defense.” 

marks omitted). In determining whether an

instruction substantially covered the proposed instruction, we “need only ascertain

whether the charge, when viewed as a whole, fairly and correctly states the issues

and the law.” United States v. Gonzalez, 

, 1517 (11th Cir. 1992).

      The district court did not abuse its discretion by declining to give King’s

requested jury instruction. King specifically requested the district court instruct

the jury as follows:


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      You may also consider whether an identifying witness is not of the
      same race as the Defendant and whether that fact might have had an
      impact on the accuracy of the witness’s original perception, and/or the
      accuracy of the subsequent identification. You should consider that,
      in ordinary human experience, people may have greater difficulty in
      accurately identifying members of a different race.

However, no evidence was adduced at trial related to this point. While King

presented evidence about other factors that might be relevant to the ability of a

witness to make a reliable identification, such as the witness’s anxiety and

opportunity to view the suspect, see Perry v. New Hampshire, 

, 727

(2012), King did not present any evidence regarding the effect of race on the

ability of a witness to make an accurate identification, nor did he cross-examine

any of the witnesses to determine whether they had difficulty making cross-racial

identifications. Accordingly, King failed to adduce a sufficient evidentiary basis

for the requested instruction, and the district court did not abuse its discretion in

declining to give it.

      Even if King had presented sufficient evidence to warrant the requested

instruction, we would not reverse on this record because the charge the district

court actually gave substantially covered the proposed instruction and the failure to

give the instruction did not substantially impair King’s ability to present an

effective mistaken-identification defense. The district court instructed the jurors as

follows:



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      The Government must prove beyond a reasonable doubt that the
      defendant was the person who committed the crime. If a witness
      identifies a defendant as the person who committed the crime, you
      must decide whether the witness is telling the truth. But even if you
      believe the witness is telling the truth, you must still decide how
      accurate the identification is.

      I suggest that you ask yourself these questions among others:

      Did the witness have an adequate opportunity to observe the person at
      the time that the crime was committed? How much time did the
      witness have to observe the person? How close was the witness? Did
      anything affect the witness’ ability to see? Did the witness know or
      see the person at an earlier time?

      You may also consider the circumstances of the identification of the
      defendant such as the way the defendant was presented to the witness
      for identification and the length of time between the crime and the
      identification of the defendant.

      After examining all the evidence, if you have a reasonable doubt that
      the defendant was the person who committed the crime, you must find
      the defendant not guilty.

      This instruction, viewed as a whole, fairly and correctly stated the issues and

the law. See 

. The instruction was sufficiently

comprehensive to assist the jury in evaluating the witnesses’ identification

testimony, highlighted potential questions for the jurors while also suggesting that

those questions were not the only factors they should consider, informed the jurors

that they should assess the reliability of the identifications even if they believed the

witnesses were telling the truth, suggested they should consider the identification

procedure, and informed the jurors that if they had a reasonable doubt regarding


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the identity of the defendant as the robber, they should find him not guilty.

Accordingly, the district court committed no reversible error in using the pattern

jury instruction on identification rather than the requested instruction in this case.4

C. Photographic Lineup

       King next argues that the photographic lineup from which Nickelson Charles

identified him was unduly suggestive because King was the only individual shown

wearing a white tank top, which was the same color and type of shirt worn by the

robber of the My Dream Coin Laundry. King maintains a different photograph of

him could have been used, or the pictures could have been presented such that only

the individuals’ faces could be seen.

       It is well established that due process restrains the admission of eyewitness

identifications at trial “when the police have arranged suggestive circumstances

leading the witness to identify a particular person as the perpetrator of a crime.”

United States v. Elliot, 

, 1309-10 (11th Cir. 2013) (internal quotation

marks omitted); see also 

. However, “[a]n identification

infected by improper police influence . . . is not automatically excluded.” 

. Instead, an identification must be excluded only if the

       4
          We do not suggest that instructions regarding cross-racial identifications are never
warranted. See United States v. Smith, 

, 1359 (11th Cir. 1997) (stating that
defendants may “request jury instructions that highlight particular problems in eyewitness
recollection” and suggesting that cross-racial identification may be such a problem). We also do
not suggest that such instructions must always be given. We have no occasion to consider the
propriety of such instructions in general because we hold only that, on this record, the district
court did not abuse its discretion in failing to give the requested instruction.
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identification procedure created “a very substantial likelihood of irreparable

misidentification” and the identification did not contain sufficient indicia of

reliability. 

marks omitted). Thus, this Court engages in a

two-step analysis in assessing a district court’s decision to admit an out-of-court

identification, asking first whether the original identification procedure was unduly

suggestive and, second, whether, under the totality of the circumstances, the

identification was nonetheless reliable. United States v. Diaz, 

, 1102

(11th Cir. 2001).

      In his initial brief, King argues only that the photographic lineup from which

Charles identified him as the robber of the My Dream Coin Laundry was unduly

suggestive. The district court denied King’s motion to suppress the identification,

however, because the procedure was not unduly suggestive and because the

identification was reliable. To warrant exclusion of the evidence, King had to

convince us that both of the district court’s findings were incorrect, but King does

not elaborate any argument on appeal regarding the reliability of Charles’s

identification. He has therefore abandoned an issue on which he had to prevail in

order to obtain reversal. See 

. We have explained that

“[w]hen an appellant fails to challenge properly on appeal one of the grounds on

which the district court based its judgment, he is deemed to have abandoned any

challenge of that ground, and it follows that the judgment is due to be affirmed.”


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Sapuppo v. Allstate Floridian Ins. Co., 

, 680 (11th Cir. 2014).

Furthermore, although King argues in passing in his brief that “given the dearth of

other evidence against him and the limited time the victims viewed the robbers the

conviction based on that tainted identification should be reversed,” his terse

statement did not sufficiently raise the reliability issue so as to save it from

abandonment. See 

(“We have long held that an appellant abandons a

claim when he either makes only passing references to it or raises it in a

perfunctory manner without supporting arguments and authority.”). Accordingly,

we do not address King’s arguments regarding the purported suggestiveness of the

photographic lineup because doing so is unnecessary, and we affirm the district

court’s decision to admit the evidence.

D. Cumulative Error

       King next contends that even if none of the alleged errors he has asserted

warrant reversal of his convictions, the cumulative effect of those errors deprived

him of a fair trial. Under the cumulative error doctrine, “an aggregation of

non-reversible errors . . . can yield a denial of the constitutional right to a fair trial,

which calls for reversal.” United States v. Baker, 

, 1223 (11th Cir.

2005). However, “where there is no error or only a single error, there can be no

cumulative error.” United States v. House, 

, 1210 (11th Cir. 2012).




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Because King has not identified any errors, there can be no cumulative error and

we therefore affirm his convictions.

E. Sentences on the Firearm Convictions

      Relying on the Supreme Court’s recent decision in Alleyne v. United States,

(2013), King argues the district court erred by imposing a

seven-year mandatory minimum sentence for brandishing a firearm during a crime

of violence because “brandishing” is an element of the offense that had to be

proved to the jury beyond a reasonable doubt. He contends that because the

element of brandishing was neither charged in the indictment nor found by the jury

beyond a reasonable doubt, his § 924(c) convictions must be vacated and his case

remanded for resentencing.

      King further maintains that his mandatory consecutive 25-year sentences on

Counts Five, Seven, and Nine should be reversed because the jury did not find

those convictions were “second or subsequent.” He asserts that the second or

subsequent nature of the convictions is an element of the offense under Alleyne

such that it must be charged in the indictment and found by the jury beyond a

reasonable doubt.

      1. Brandishing a Firearm

           We begin our analysis of King’s Alleyne argument with a brief

discussion of the standard of review applicable to such claims. We have


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previously held that preserved claims of error under Apprendi are reviewed de

novo because the applicability of Apprendi to a specific case is a pure question of

law. See United States v. Candelario, 

, 1306 (11th Cir. 2001);

United States v. Rogers, 

, 1321 (11th Cir. 2000), abrogated on other

grounds by United States v. Sanchez, 

(11th Cir. 2001) (en banc). In

Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable 

, 120 S. Ct. at 2362-63. Subsequently, the Supreme Court held in

Harris v. United States, 

, 568, 

, 2420 (2002),

overruled by 

, that the rule announced in Apprendi did

not apply to facts that increase a defendant’s mandatory minimum sentence. While

King’s case was pending on appeal with this Court, however, the Supreme Court

overruled Harris, holding in Alleyne that the “distinction between facts that

increase the statutory maximum and facts that increase only the mandatory

minimum” was inconsistent with Apprendi. 

, 2163.

Instead, the Court held that “any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.” 

The Supreme Court

specifically concluded a finding that a firearm was brandished during a crime of




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violence is an element of an 18 U.S.C. § 924(c)(1)(A)(ii) 5 offense that must be

found by a jury beyond a reasonable doubt. 

       Because the Supreme Court in Alleyne simply extended Apprendi to facts

that increase a defendant’s mandatory minimum sentence, see 

, we hold that preserved claims of Alleyne error, like preserved claims of

Apprendi error, are reviewed de novo. King adequately preserved his objection to

receiving an enhanced mandatory minimum sentence under § 924(c)(1)(A)(ii) by

arguing that, under Apprendi and the Sixth Amendment, the jury had to find

beyond a reasonable doubt that he brandished a firearm. See United States v.

McKinley, 

, 1295 & n.2 (11th Cir. 2013).

       We further hold that Alleyne violations are subject to harmless error review.

We have consistently held that Apprendi violations are subject to harmless error

analysis. See United States v. Allen, 

, 1276 (11th Cir. 2002) (“This

circuit has recognized repeatedly that where an Apprendi violation exists . . . a

reviewing court must engage in a harmless error analysis.”). We have explained

that “Apprendi did not recognize or create a structural error that would require per

se reversal,” United States v. Nealy, 

, 829 (11th Cir. 2000), and that


       5
         Section 924(c)(1)(A) enumerates the mandatory minimum sentences for any person
who uses or carries a firearm during or in relation to a crime of violence, or who possesses a
firearm in furtherance of a crime of violence. The statute provides a five-year mandatory
minimum sentence for any person who uses, carries, or possesses a firearm, 18 U.S.C.
§ 924(c)(1)(A)(i), but imposes a seven-year mandatory minimum sentence for anyone who
brandishes a firearm during the commission of the crime, 

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“Apprendi errors do not fall within the limited class of fundamental constitutional

errors that defy analysis by harmless error standards,” 

(internal quotation marks omitted). We have also repeatedly held that

extensions of Apprendi, such as those recognized in Blakely v. Washington, 

, 

(2004), and United States v. Booker, 

, 

(2005), are subject to harmless error review. See, e.g., United States v.

Dulcio, 

, 1277 (11th Cir. 2006) (“Because [the defendant] preserved

his Blakely/Booker claim at sentencing, we review for harmless error.”); United

States v. Paz, 

, 948 (11th Cir. 2005) (explaining we will disregard a

Booker error if it was harmless). Because we review errors under Apprendi and its

progeny for harmless error, and Alleyne is simply the newest member of that same

family, we readily conclude that Alleyne errors (i.e., errors that increase the

statutory mandatory minimum) are subject to harmless error review.

      The Government concedes the district court erred under Alleyne by imposing

a seven-year sentence for King’s firearm conviction in Count Three. Accepting

that concession, we nevertheless conclude that reversal is not warranted because

the error was harmless. See 

(“[A] constitutional error is

harmless if it is clear beyond a reasonable doubt that a rational jury would have

found the defendant guilty absent the error.” (internal quotation marks omitted));

see also Chapman v. California, 

, 24, 

, 828 (1967). At


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trial, the Government presented extensive evidence that King brandished a firearm

during the My Dream Coin Laundry robbery. Charles testified that King pointed a

gun at his face and demanded the money from the laundromat’s cash register.

Charles further testified that after King again demanded Charles turn over the

money, King threatened to shoot him. The Government also introduced into

evidence a surveillance video of the robbery. In the video, after Charles walks

behind the counter in the laundromat, King lunges forward and thrusts a gun in

Charles’s face. King keeps the gun aimed at Charles while taking money from the

counter, and then waives it at Charles as King and Kelly run from the store.

Additionally, the Government presented still photographs of the robbery taken

from the surveillance video. In one of the photographs, King is depicted holding a

gun in one hand with his other hand bracing the firearm from underneath. The gun

is pointed directly at Charles, who is located behind the counter. On these facts, it

is clear beyond a reasonable doubt that a rational jury would have found King

guilty of brandishing a firearm absent the Alleyne error. See 

; see also 18 U.S.C. § 924(c)(4) (defining the term “brandish” as “to display all

or part of the firearm, or otherwise make the presence of the firearm known to

another person, in order to intimidate that person, regardless of whether the firearm

is directly visible to that person”). Accordingly, we affirm King’s seven-year

sentence for brandishing a firearm during the commission of a violent crime.


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      2. Second or Subsequent Convictions

      King next argues that the rationale of Alleyne required the indictment to

charge and a jury to find beyond a reasonable doubt that the § 924(c) firearms

offenses charged in Counts Five, Seven, and Nine were “second or subsequent.”

King raises this argument for the first time on appeal, and we therefore review it

only for plain error. See 

. Under the plain error

standard, we will reverse only if there is error that is plain, that affected the

defendant’s substantial rights, and only if the error seriously affects the fairness

integrity, or public reputation of judicial proceedings. 

not met that

standard.

      18 U.S.C. § 924(c)(1)(C)(i) provides that “[i]n the case of a second or

subsequent conviction under this subsection, the person shall . . . be sentenced to a

term of imprisonment of not less than 25 years.” Section 924(c)(1)(D)(ii) requires

that such sentences must run consecutively to any other term of imprisonment. 18

U.S.C. § 924(c)(1)(D)(ii). King’s argument that a jury must find his convictions

were “second or subsequent” runs afoul of the Supreme Court’s decision in

Almendarez-Torres v. United States, 

, 

(1998). “In

[Almendarez-Torres], the Supreme Court held that the [G]overnment need not

allege in its indictment and need not prove beyond a reasonable doubt that a

defendant had prior convictions for a district court to use those convictions for


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purposes of enhancing a sentence.” United States v. Shelton, 

, 1329

(11th Cir. 2005) (internal quotation marks omitted). We have explained that the

Supreme Court’s holding in Almendarez-Torres “was left undisturbed by

Apprendi, Blakely, and Booker,” 

repeatedly refused to depart from it

until the Court itself overrules the case, see, e.g., United States v. Gandy, 

, 1237 n.3 (11th Cir. 2013); United States v. Thomas, 

, 1035

(11th Cir. 2001) (“[W]e are bound to follow Almendarez-Torres unless and until

the Supreme Court itself overrules that decision.”). Finding that a defendant’s

convictions were “second or subsequent” is the same as finding that a defendant

had a prior conviction, and the issue remains governed by Almendarez-Torres. See

United States v. Mack, 

, 609 (6th Cir. 2013) (concluding that

Almendarez-Torres remains binding authority notwithstanding Alleyne and that a

jury need not find a defendant’s convictions were second or subsequent under

§ 924(c)(1)(C)(i)).

      King’s argument that the holding of Almendarez-Torres is inconsistent with

the logic of Alleyne is also unavailing. The Supreme Court itself explicitly

declined to revisit Almendarez-Torres in 

n.1, and we

recently rejected this same argument in United States v. Harris, 

,

1250 (11th Cir. 2014). In Harris, we recognized “that there is some tension

between Almendarez-Torres on the one hand and Alleyne and Apprendi on the


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other,” but concluded “we are not free to do what the Supreme Court declined to

do in Alleyne, which is overrule Almendarez-Torres.” 

district court

did not plainly err by imposing consecutive 25-year sentences for King’s second or

subsequent § 924(c) offenses.

F. Reasonableness of King’s Sentence

      King contends his 1,062-month sentence is unreasonable because the nature

of his offenses did not warrant such a severe sentence, and his co-conspirator,

Kelly, received only 384 months’ imprisonment which created a sentencing

disparity. King emphasizes that while his offenses were serious, no victims were

harmed, and he asserts the district court failed to consider his personal

characteristics.

      We review the reasonableness of a defendant’s sentence under a deferential

abuse of discretion standard. Gall v. United States, 

, 41, 

, 591 (2007). When reviewing the reasonableness of a sentence, we first ensure

“that the district court committed no significant procedural error” and then

“consider the substantive reasonableness of the sentence imposed” under the

totality of the circumstances. 

128 S. Ct. at 597. In evaluating the

reasonableness of a sentence, we measure the sentence against the factors outlined




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in 18 U.S.C. § 3553(a). 6 United States v. Pugh, 

, 1188 (11th Cir.

2008). Under our highly deferential review, we will vacate a sentence only 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.”

United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc) (internal

quotation marks omitted).

       The district court did not abuse its discretion when imposing King’s

sentence. At sentencing, the district court observed that King failed to accept

responsibility for his violent offenses, failed to show any remorse, and would

likely be a recidivist if released from incarceration. The district court explicitly

pointed to the nature and circumstances of the offenses, discussed the need to

protect the public from King’s future criminal conduct, and referenced King’s

personal characteristics. Although the district court did not expressly discuss

King’s history of mental illness and drug abuse, we have consistently held that the


       6
         Section 3553(a) provides that the district court should impose a sentence that is
“sufficient, but not greater than necessary, to comply with the purposes” listed in § 3553(a)(2),
including the need to reflect the seriousness of the offense, promote respect for the law, provide
just punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular
sentence, the court must also consider the nature and circumstances of the offense, the history
and characteristics of the defendant, the kinds of sentences available, the applicable guideline
range, the pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims. 

(3)-(7).
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district court is not required to state it has considered each of the § 3553(a) factors

or to discuss each of the factors on the record. United States v. Kuhlman, 

, 1326 (11th Cir. 2013) (“[N]othing requires the district court to state on the

record that it has explicitly considered each of the § 3553(a) factors or to discuss

each of the §3553(a) factors.” (internal quotation marks and ellipsis omitted)).

      The district court also did not create an unwarranted sentencing disparity by

sentencing King to a 1,062-month term of imprisonment while his co-conspirator,

Kelly, received only a 384-month sentence. King was not similarly situated to

Kelly because Kelly pled guilty to only a few counts while King went to trial and

was convicted of 9 counts, including numerous § 924(c) offenses that carried

mandatory consecutive sentences of at least 25 years’ imprisonment. See United

States v. Jayyousi, 

, 1118 (11th Cir. 2011) (stating that, on remand,

the district court should avoid comparisons between, inter alia, defendants who

went to trial and those who pled guilty); see also United States v. Docampo, 

, 1101 (11th Cir. 2009) (“[D]efendants who cooperate with the

government and enter a written plea agreement are not similarly situated to a

defendant who provides no assistance to the government and proceeds to trial.

There is no unwarranted disparity even when the sentence the cooperating

defendant receives is substantially shorter.” (citation and internal quotation marks

omitted)).


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      The district court did not commit a clear error of judgment in weighing the

§ 3553(a) factors, and it imposed a sentence within the range of reasonable

sentences dictated by the facts of the case. Accordingly, we affirm King’s

sentences.

                               III. CONCLUSION

      For the foregoing reasons, we affirm King’s convictions and sentences.

AFFIRMED.




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