Case: 12-15937       Date Filed: 04/18/2014       Page: 1 of 19


                                                                     [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 12-15937
                              ________________________

                     D.C. Docket No. 1:11-cr-00455-ODE-CCH-2

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

DYSON ONNIE MCCRAY,

                                                                       Defendant-Appellant.

                              ________________________

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

                                      (April 18, 2014)

Before ANDERSON and EBEL,* Circuit Judges, and UNGARO,** District Judge.

___________________
*Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
      designation.

**Honorable Ursula Ungaro, United States District Judge for the Southern District of Florida,
      sitting by designation.
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PER CURIAM:

      Dyson Onnie McCray appeals his 186-month total sentence imposed after a

jury convicted him of one count of armed robbery, in violation of 18 U.S.C.

§ 2113(a) and (d) (Count I), and one count of knowingly using and carrying a

firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A) (Count II). McCray first argues that his Sixth Amendment right to

a trial by jury was violated by the district court’s imposition of a seven-year

mandatory minimum sentence as to Count II based on a finding by the district

judge, rather than the jury, that McCray brandished a firearm during the bank

robbery. Second, McCray contends that the district court clearly erred by

imposing a two-level enhancement for his purported leadership role in the offense.

Finally, McCray contends his sentence is substantively unreasonable. We affirm.

                                          I.

      This case arises from the armed robbery of a Wells Fargo bank in Doraville,

Georgia, on August 12, 2012. On that date, two men stormed the bank while a

third man waited outside. They demanded money at gunpoint and fled with

$25,017. While making their escape, two of the suspects ran a red light and

crashed their vehicle into a pedestrian van. They then fled on foot. By the end of

August, law enforcement authorities had arrested McCray and two other men,

Charles William Daniels and Jamail Christopher Biscaino, for their involvement in


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the robbery. A federal grand jury indicted McCray and his two codefendants on

one count of aiding and abetting one another in the commission of armed bank

robbery, and one count of knowingly using and carrying a firearm during and in

relation to a crime of violence. The indictment stated that McCray used or carried

a firearm during a crime of violence—which is prohibited by 18 U.S.C.

§ 924(c)(1)(A)(i) and carries a mandatory minimum sentence of five years’

imprisonment—but cited 18 U.S.C. § 924(c)(1)(A)(ii)—the subsection that

prescribes a seven-year mandatory minimum sentence for brandishing a firearm.

At the end of McCray’s four-day trial, the district court instructed the jury with

regard to Count II that McCray could only be found guilty if the government

proved beyond a reasonable doubt: “First, that the defendant committed the bank

robbery charged in Count 1 of the indictment; secondly, that the defendant

knowingly used or carried a firearm; third, that the defendant used the firearm in

relation to or carried the firearm during and in relation to the bank robbery crime.”

Similarly, tracking the language of the indictment, the verdict form stated, “Count

2: Using a Firearm in Relation to or Carrying a Firearm During and in Relation to

Commission of a Crime of Violence, 18 U.S.C. 924(c)(1)(A)(ii), and Section 2.”

The jury convicted McCray on both counts, and the district court sentenced him to

seven years’ imprisonment on Count II.




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      On appeal, McCray argues that his Sixth Amendment right to a trial by jury

was violated when the district court sentenced him to seven years’ imprisonment

based on the finding that he brandished a firearm. He maintains that the indictment

failed to allege that he brandished a firearm and that the jury failed to find that he

brandished a firearm, and he denies that he even possessed a firearm during the

commission of the charged offense.

      We review de novo preserved claims of error under Apprendi v. New Jersey,

, 

(2000), 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, 

, 1277–80 (11th Cir. 2001) (en banc). Because Alleyne v. United States is an

extension of Apprendi, and its applicability to a specific case is a pure question of

law, we will review preserved claims of Alleyne error de novo. See Alleyne v.

United States, 570 U.S. ____, ____, 

, 2160 (2013).

      In relevant part, 18 U.S.C. § 924(c)(1)(A) provides the applicable mandatory

minimum sentence for any person who uses or carries a firearm during or in

relation to a crime of violence. The statute provides a five-year mandatory

minimum sentence for any person who uses, carries, or possesses a firearm in

furtherance of a crime of violence. 

But if the defendant


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brandishes the firearm during the commission of the crime, the mandatory

minimum sentence is increased by two years, to seven years’ imprisonment. 

The statute defines “brandish” to mean “with respect to a

firearm, 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.” 

see also

Dean v. United States, 

, 572–73, 

, 1853 (2009) (noting

that “[t]he defendant must have intended to brandish the firearm”).

      In Apprendi, the Supreme Court held as a matter of constitutional law 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. In

the wake of Apprendi, we determined that “Apprendi did not recognize or create a

structural error that would require per se reversal,” and that Apprendi violations are

therefore subject to harmless error review. United States v. Nealy, 

,

829 (11th Cir. 2000); see also 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 emphasized that “Apprendi errors do not fall within the limited class of

fundamental constitutional errors that defy analysis by harmless error standards.”


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(internal quotation marks omitted). “[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).

      Two years after deciding Apprendi, the Supreme Court held in Harris v.

United States, 

, 556, 

, 2414 (2002), overruled by

Alleyne, 570 U.S. at ____, 133 S. Ct. at 2156, that for purposes of

§ 924(c)(1)(A)(ii), brandishing a firearm was a sentencing factor that did not need

to be proved to a jury but instead could be found by a judge. The Court expressly

declined to apply Apprendi to facts increasing a defendant’s mandatory minimum

sentence. 

122 S. Ct. at 2419–20. In Alleyne, however, the Supreme

Court overruled Harris, concluding that the “distinction between facts that increase

the statutory maximum and facts that increase only the mandatory minimum” was

a false one, and was inconsistent with Apprendi’s command. 570 U.S. at ____,

133 S. Ct. at 2155. Instead, the Court held:

      Any fact that, by law, increases the penalty for a crime is an
      “element” that must be submitted to the jury and found beyond a
      reasonable doubt. Mandatory minimum sentences increase the
      penalty for a crime. It follows, then, that any fact that increases the
      mandatory minimum is an “element” that must be submitted to the
      jury.



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In Alleyne, the defendant and an accomplice robbed a store

manager who was on his way to the bank to deposit money. 

robbery, the defendant’s accomplice approached the manager with a gun and

demanded that he hand over the money. 

convicted the defendant of

robbery affecting interstate commerce and of using or carrying a firearm in relation

to a crime of violence, in violation of § 924(c)(1)(A). Id. at ____, 133 S. Ct. at

2155–56. As the Supreme Court explained, “[t]he jury indicated on the verdict

form that Alleyne had used or carried a firearm during and in relation to a crime of

violence, but did not indicate a finding that the firearm was brandished.” Id.

at ____, 133 S. Ct. at 2156 (internal quotation marks and alterations omitted). The

defendant’s presentence investigation report recommended a mandatory minimum

seven-year sentence under § 924(c)(1)(A)(ii), which the district court imposed over

Alleyne’s objection. 

Circuit affirmed. 

the Fourth Circuit’s judgment and remanding for resentencing,

the Supreme Court held that “[w]hile Harris limited Apprendi to facts increasing

the statutory maximum, the principle applied in Apprendi applies with equal force

to facts increasing the mandatory minimum.” Id. at ____, 133 S. Ct. at 2160. The

Court explained that “[i]t is indisputable that a fact triggering a mandatory

minimum alters the prescribed range of sentences to which a criminal defendant is

exposed.” 

the legally prescribed range is the penalty affixed to


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the crime, . . . it follows that a fact increasing either end of the range produces a

new penalty and constitutes an ingredient of the offense.” 

reasoned

that “the core crime and the fact triggering the mandatory minimum sentence

together constitute a new, aggravated crime, each element of which must be

submitted to the jury.” Id. at ____, 133 S. Ct. at 2161. Because there was “no

basis in principle or logic to distinguish facts that raise the maximum from those

that increase the minimum,” the Supreme Court expressly overruled Harris, finding

it to be inconsistent with Apprendi. Id. at ____, 133 S. Ct. at 2163. The Court

then held that the district court’s finding by a preponderance of the evidence that

the defendant brandished a firearm violated his Sixth Amendment rights, and the

Court remanded for resentencing consistent with the jury’s verdict. Id. at ____,

133 S. Ct. at 2163–64.

      Turning to the facts at hand, we note that the government concedes that it

was error for the district court to fail to submit to the jury the element of

brandishing the weapon. We accept the government’s concession. We note that

the Alleyne decision was issued while the instant appeal was pending.

      Conceding Alleyne error here, the government nevertheless argues that the

error was harmless. As with errors under Apprendi, errors under Alleyne will

require vacatur of a sentence only where the error was not harmless. See

Washington v. Recuenco, 

, 218, 

, 2551 (2006)


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(recognizing that “most constitutional errors can be harmless” (internal quotation

marks omitted)). That is so because Alleyne was an extension of Apprendi, and

we have consistently held that other extensions of Apprendi are subject to harmless

error analysis. For instance, after the Supreme Court extended Apprendi to

sentencing schemes in Blakely v. Washington, 

, 

(2004), and United States v. Booker, 

, 

(2005), we

continued to review preserved Blakely/Booker errors for harmlessness. See, e.g.,

United States v. Dulcio, 

, 1277 (11th Cir. 2006); United States v.

Paz, 

, 947–48 (11th Cir. 2005) (holding that Booker errors are

reviewable for harmless error). Furthermore, the same principles that buttress

harmless error review with regard to Apprendi violations apply with equal force to

Alleyne-type violations. Just as “Apprendi did not recognize or create a structural

error that would require per se reversal,” 

, Alleyne did not

recognize or create a structural error requiring per se reversal. And as the Supreme

Court itself noted in deciding Alleyne, “there is no basis in principle or logic to

distinguish facts that raise the maximum from those that increase the minimum.”

Alleyne, 570 U.S. at ____, 133 S. Ct. at 2163. In other words, if we review those

errors that raise the statutory maximum (Apprendi errors) for harmless error, there

is no reason we should not also review those errors that increase the mandatory

minimum (Alleyne errors) for harmlessness. In sum, we hold that as with


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Apprendi errors impacting a defendant’s sentencing range, Alleyne violations

impacting a defendant’s sentencing range “do not fall within the limited class of

fundamental constitutional errors that defy analysis by harmless error standards.”

(internal quotation marks omitted).

      This conclusion is virtually dictated by our recent decision in United States

v. McKinley, 

(11th Cir. 2013). McKinley involved facts identical

to the facts of the instant case, with the sole exception being that in McKinley, the

Alleyne argument was made for the first time on appeal, 

whereas in the

instant case the Alleyne error was preserved. The McKinley panel applied the

plain error analysis, 

whereas we must review de novo. However,

McKinley held that “because Alleyne was an extension of Apprendi, we adopt the

same rule and hold that . . . . as with other alleged constitutional errors, specifically

errors of the Apprendi variety, the failure to make a timely objection results in this

Court’s application of plain error review.” 

For the same

reasons that unpreserved Apprendi-type errors are subject to plain error review,

preserved Apprendi-type errors are subject to harmless error review, as we hold

above. Indeed, in McKinley, we held that the defendant there failed to survive

plain error review because there was overwhelming evidence that the defendant did

in fact brandish the weapon. 

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      We therefore turn our attention to determine whether the Alleyne error in

this case was in fact harmless. Applying harmless error review, it quickly becomes

“clear beyond a reasonable doubt that a rational jury would have found [McCray]

guilty [of brandishing a firearm] absent the error.” 

. At

trial, the government presented extensive evidence that the first robber to enter the

bank brandished a firearm. In a videotape that was played for the jury, as the

robber disappears behind a wall into the vault area, he appears to hold his right arm

up and in front of himself, as if pointing a gun. Furthermore, Charleston Silva, the

former store manager of the bank, testified that while he was working in the vault

area, a man holding a gun followed one of his coworkers into the vault. Silva

stated that the man “poked [the gun] in our faces telling us to go against the

door . . . and to get on the floor,” and Silva specifically confirmed that the man

pointed the gun at him and his coworker. That coworker, Liz Perez Johns,

recounted how a man carrying a gun followed her into the bank’s vault while

pointing his gun at her. Johns explained that the robber pointed a gun at her and

Silva and told them to get on the floor. Additionally, Alan Brett Fears, a special

agent with the Federal Bureau of Investigation, testified that McCray confessed to

the bank robbery, admitting that he was the individual who jumped over the teller

counter during the robbery while carrying a .22-caliber handgun. McCray stated

that once he was behind the counter, he followed a woman into an open room,


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where he found her and another employee. McCray further told Agent Fears that

he pointed his gun at both employees while telling them to get on the ground and

count to 100. The government also showed the jurors a surveillance videotape of

the bank vault during the robbery. On the video, Silva stands at a counter before

Johns runs into the room from the left side of the screen. A man runs into the room

behind her, holding his right arm up in front of himself. As Silva and Johns stand

in the back of the room, the man points his right arm in their direction and

continues to do so as they crouch on the floor. The man also holds his arm in their

direction while placing objects into a trash can. Silva described the events on the

video, explaining that the man pointed a gun at him and Johns the entire time.

      Given this overwhelming evidence, we are satisfied beyond a reasonable

doubt that any rational jury would have found McCray guilty of brandishing a

firearm—that is, of displaying “all or part of [a] firearm, or otherwise mak[ing] the

presence of the firearm known to another person, in order to intimidate that

person.” 18 U.S.C. § 924(c)(4); cf. 

–30 (affirming a

sentence under Apprendi where no reasonable jury could have convicted the

defendant of the substantive offense but not found him responsible for the requisite

quantity of drugs to trigger the enhanced statutory maximum). Finally, although

McCray contends that he did not commit the bank robbery at all and thus was not

the individual who brandished a firearm (or carried any firearm in the first


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instance), we reject this argument as precluded by the jury’s verdict. The jury

found McCray guilty of the substantive offenses, so it necessarily follows that the

jury found that he was at the scene of the bank robbery. We affirm the district

court’s imposition of McCray’s seven-year mandatory minimum sentence under

§ 924(c)(1)(A)(ii).

                                            II.

         McCray next argues that the district court erred by finding that he was an

organizer or leader of the offense and imposing a two-level enhancement under

U.S.S.G. § 3B1.1(c) for his role in the offense. He maintains that the evidence

demonstrated that all three codefendants participated equally in the preparation and

execution of the robbery, and that “each man did his part to accomplish their joint

goal.”

         We review for clear error a district court’s finding that a defendant was an

organizer or leader for purposes of applying a § 3B1.1 enhancement. United States

v. Barrington, 

, 1200 (11th Cir. 2011). A factual finding is clearly

erroneous when, after reviewing all the evidence, we are “left with the definite and

firm conviction that a mistake has been committed.” United States v. Philidor, 

, 885 (11th Cir. 2013) (internal quotation marks omitted).

         Pursuant to § 3B1.1, a defendant’s base offense level is increased by two

levels “[i]f the defendant was an organizer, leader, manager, or supervisor in any


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criminal activity.” U.S.S.G. § 3B1.1(c). “The assertion of control or influence

over only one individual is enough to support a § 3B1.1(c) enhancement.” United

States v. Phillips, 

, 1058 (11th Cir. 2002) (internal quotation marks

and alteration omitted). According to the Guidelines commentary, in determining

whether to apply a leadership role enhancement, the district court should consider:

(1) the defendant’s “exercise of decision making authority,” (2) the nature of the

defendant’s “participation in the commission of the offense,” (3) “the recruitment

of accomplices,” (4) “the claimed right to a larger share of the fruits of the crime,”

(5) “the degree of participation in planning or organizing the offense,” (6) “the

nature and scope of the illegal activity,” and (7) “the degree of control and

authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n.4.

      The district court did not clearly err by assessing McCray a two-level

enhancement for acting as an organizer or leader of the bank robbery. The

government presented evidence that McCray (1) acquired the guns used to commit

the robbery, (2) took credit for the initial plan to rob a bank in Cobb County,

(3) selected the actual Wells Fargo bank that was eventually robbed as the target

for the robbery, and (4) told Agent Fears that “he made most of the decisions about

which bank to rob and actually robbing the bank.” Although McCray’s

codefendant Daniels used the term “we” while testifying and referred to the men’s

actions in the collective, such testimony at most created two permissible views of


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the evidence, and “[w]here there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” United States v.

Izquierdo, 

, 1278 (11th Cir. 2006) (internal quotation marks

omitted). The district court chose a view of the facts under which McCray was a

leader or organizer of the bank heist, and we discern no clear error in that view.

                                                III.

       Finally, McCray argues that his 186-month total sentence is substantively

unreasonable. He maintains that the district court failed to adequately account for

his history of stable employment and his lack of criminal history. Furthermore,

McCray contends that his sentence is unreasonable because it is nearly twice as

long as those of his codefendants, Daniels and Biscaino.

       We review the sentence imposed by the district court for reasonableness.

, 125 S. Ct. at 767. Our inquiry includes two distinct

elements: We first determine whether a sentence is procedurally reasonable, and

then turn our attention to whether the sentence is, on the whole, substantively

reasonable. See United States v. Gonzalez, 

, 1323 (11th Cir. 2008).

McCray does not argue that his sentence is procedurally unreasonable, 1 and our




       1
               It is axiomatic that a defendant’s failure to raise an issue on appeal abandons that
issue, and we therefore deem McCray to have abandoned any claim of procedural
unreasonableness. United States v. Jernigan, 

, 1283 n.8 (11th Cir. 2003).
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review of the record reveals no procedural defect, so the only issue before us is the

substantive reasonableness of his 186-month total sentence.

      We review the substantive reasonableness of the sentence imposed by the

district court under the “under [the] deferential abuse-of-discretion standard.” Gall

v. United States, 

, 41, 

, 591 (2007). We measure

reasonableness against the factors outlined in 18 U.S.C. § 3553(a). United States

v. Pugh, 

, 1188 (11th Cir. 2008). The district court is required to

impose a sentence that is “sufficient, but not greater than necessary, to comply with

the purposes” of sentencing enumerated 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 Guidelines 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).

      The party challenging a sentence “bears the burden of establishing that the

sentence is unreasonable in the light of both th[e] record and the factors in

[§] 3553(a).” United States v. Talley, 

, 788 (11th Cir. 2005). “In our


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evaluation of a sentence for reasonableness, we recognize that there is a range of

reasonable sentences from which the district court may choose, and when the

district court imposes a sentence within the advisory Guidelines range, we

ordinarily will expect that choice to be a reasonable one.” United States v.

Martinez-Gonzalez, 

, 1311 (11th Cir. 2011). Further, “when the

district court imposes a sentence within the advisory Guidelines range, we

ordinarily will expect that choice to be a reasonable one.” United States v.

Docampo, 

, 1101 (11th Cir. 2009) (internal quotation marks

omitted). Another indicator of a reasonable sentence is the fact that it is “well

below” the applicable statutory maximum. See 

. Thus,

under our highly deferential standard of review, we will vacate and remand for

resentencing “if, but 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); see also 

(observing that “a sentence may be unreasonable if it is grounded solely on

one factor, relies on impermissible factors, or ignores relevant factors”).

      McCray fails to persuade us that the sentence arrived at by the district court

is substantively unreasonable. During the sentencing hearing, the district court


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explained that McCray was convicted of a violent crime, which necessitated a

“great need for punishment.” Furthermore, the district court pointed to the need

for deterrence, highlighted the need to protect the public, and explicitly stated that

it had considered McCray’s lack of a criminal record but had found McCray to be

the most culpable participant in the robbery. Although the district court did not

expressly reference McCray’s employment history, it did take note of the lack of

violent crime in McCray’s history; regardless, nothing requires the district court to

expound upon every nook and cranny of a defendant’s background before

imposing a sentence. See 

(explaining that the district court

need not discuss each § 3553(a) factor). In addition, McCray’s total sentence of

186 months was well below the statutory maximum of life imprisonment and

firmly within the applicable Guidelines range of 171–192 months’ imprisonment.

See 

; 

. As a sheer matter of

common sense, it should come as no surprise to McCray that a person who enters a

financial institution in this country wielding a firearm, who demands money from

the employees of the bank on pain of death or serious bodily injury—thereby

terrorizing a group of innocent civilians for financial gain—and who visits

mayhem upon the general public by crashing his vehicle into another car while

attempting to make his escape, might later find himself serving a substantial prison

sentence. McCray’s sentence is substantively reasonable.


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       The district court, moreover, did not create an unwarranted sentencing

disparity by sentencing McCray to a longer sentence than those received by his

codefendants. McCray was not similarly situated to Daniels and Biscaino, as both

men pleaded guilty pursuant to written plea agreements and agreed to cooperate

with the government. See United States v. Jayyousi, 

, 1118 (11th

Cir. 2011) (admonishing the district court on remand “not [to] draw comparisons to

cases involving defendants who were convicted of less serious offenses, pleaded

guilty, or who lacked extensive criminal histories” (emphasis added)); United

States v. Dorman, 

, 944–45 (11th Cir. 2007) (concluding that

coconspirators were not similarly situated for purposes of § 3553(a)(6) because

several of them provided substantial assistance while the defendant did not).

McCray parted company with his confederates when they pleaded guilty to the

charged crime pursuant to plea agreements and cooperated with authorities while

he refused to do so and took his chances at trial.2 Having cast his die at trial,

McCray cannot now be heard to complain that he should have received the same

sentence as his codefendants, both of whom pleaded guilty and cooperated with the

government.

       AFFIRMED.

       2
               In fact, one of McCray’s codefendants, Biscaino, was convicted only on Count I
of the indictment and did not face the mandatory minimum sentence triggered by Count II, the
weapons charge, so Biscaino cannot provide a proper comparator to McCray’s sentence because
they were not even sentenced for the same crimes.
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