Filed: Feb. 26, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4487 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JANSON LAMARK STRAYHORN, Defendant – Appellant. No. 12-4495 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JIMMY JAY STRAYHORN, JR., Defendant – Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00368-CCE-2; 1:11-cr-00368-CCE-1) Argued: December 11, 2013 Dec
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4487 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JANSON LAMARK STRAYHORN, Defendant – Appellant. No. 12-4495 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JIMMY JAY STRAYHORN, JR., Defendant – Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00368-CCE-2; 1:11-cr-00368-CCE-1) Argued: December 11, 2013 Deci..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4487
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JANSON LAMARK STRAYHORN,
Defendant – Appellant.
No. 12-4495
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JIMMY JAY STRAYHORN, JR.,
Defendant – Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00368-CCE-2; 1:11-cr-00368-CCE-1)
Argued: December 11, 2013 Decided: February 26, 2014
Before GREGORY, DAVIS, and WYNN, Circuit Judges.
Affirmed in part, reversed in part, and vacated and remanded for
resentencing by published opinion. Judge Wynn wrote the
opinion, in which Judge Gregory and Judge Davis joined.
ARGUED: James B. Craven, III, Durham, North Carolina, for
Appellants. Andrew Charles Cochran, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF:
Tony E. Rollman, Enka, North Carolina, for Appellant Jimmy Jay
Strayhorn, Jr. Ripley Rand, United States Attorney, Graham T.
Green, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
2
WYNN, Circuit Judge:
This appeal arises from the convictions of Janson Strayhorn
and Jimmy Strayhorn for the robbery of P & S Coins and a second
planned robbery of All American Coins.
Regarding Janson Strayhorn’s appeal, we conclude that there
was insufficient evidence to convict Janson Strayhorn of robbing
P & S Coins. Thus, we hold that the district court erred by
denying his motion for judgment of acquittal on the charges
related to the P & S Coins robbery. The government did,
however, present sufficient evidence to sustain the conspiracy
and firearm convictions against Janson Strayhorn relating to the
All American Coins robbery.
Regarding Jimmy Strayhorn’s appeal, we remand his case for
resentencing on the brandishing charge arising from the P & S
Coins robbery because the district court failed to instruct the
jurors that to convict Jimmy Strayhorn of that offense, they
needed to find that he had brandished a gun.
I.
In August 2010, two men robbed P & S Coins, a store in
north Davidson County, North Carolina. The robbers arrived in a
cream-colored Cadillac. One of the robbers pulled a revolver on
Samuel Sims, the store’s owner, while the other robber bound
Sims’s hands with zip ties and his legs with duct tape. The
3
robbers took coins from a safe and a Colt Peacemaker revolver
from a display case and then left the store.
Starting on October 24, 2010, Jimmy Strayhorn, who had been
detained in Guilford County Jail as a suspect for other crimes,
placed several phone calls to his girlfriend, Thania Woodcock.
The police listened to those calls and learned that Jimmy
Strayhorn had asked his brother Janson Strayhorn to rob All
American Coins and Collectibles in Butner, North Carolina to
raise enough money for Jimmy Strayhorn to post his bond. These
calls were forwarded to the Butner police and officers were
dispatched to watch All American Coins. Butner police knew from
the recorded phone calls that the robbers would likely be
driving Woodcock’s Cadillac.
On October 29, 2010, Captain Donald Slaughter, a Butner
police officer, was patrolling the area around All American
Coins in an unmarked police car when he noticed a white Cadillac
driving slowly past the store. When the Cadillac neared the
unmarked police car, the Cadillac’s occupants “slumped down[,]”
and the driver “place[d] his hand up over his eyes . . . to
conceal his identity . . . .” J.A. 146-47.
Slaughter followed the Cadillac, which sped up and made
several turns. Believing that the Cadillac’s driver was trying
to elude him, Slaughter called in the license plate, confirmed
that he was following the targeted Cadillac, and stopped and
4
searched the car along with Officer Knutson, who had been called
for back-up assistance. The officers discovered that Janson
Strayhorn was the Cadillac’s driver, Kenneth Jones was the
passenger, and the vehicle was registered to Woodcock, Jimmy
Strayhorn’s girlfriend. Upon searching the Cadillac, the police
found in the back seat a book bag and a laptop bag each
containing a revolver. One of the revolvers was the Colt
Peacemaker stolen from P & S Coins.
After arresting Janson Strayhorn and Jones, the officers
obtained a search warrant for Woodcock’s house. There, the
police found the same type of black zip tie as those used in the
P & S Coins robbery, a coin taken from P & S Coins, and
ammunition. It is undisputed that Jimmy Strayhorn resided, at
least occasionally, at the Woodcock residence but that Janson
Strayhorn did not.
As a result of these incidents, Defendants Janson Strayhorn
and Jimmy Strayhorn were charged with one count each of: robbery
in violation of the Hobbs Act, which prohibits actual or
attempted robbery or extortion affecting interstate or foreign
commerce (Count One); using, by brandishing, a firearm in
relation to that robbery (Count Two); conspiracy to commit
5
robbery in violation of the Hobbs Act (Count Three); and using a
firearm in relation to the conspiracy (Count Four).1
At the ensuing joint trial, various witnesses testified,
including Sims from P & S Coins, who identified Jimmy Strayhorn
as one of the robbers. Notably, Sims did not identify Janson
Strayhorn. Jimmy Strayhorn’s DNA was also found on the plastic
zip ties left in P & S Coins.
Additionally, a fingerprint expert testified that a partial
fingerprint on the duct tape used to bind Sims’s feet belonged
to Janson Strayhorn. But the expert testified that he could not
determine when that fingerprint had been imprinted on the tape
and that such a print could remain on the tape for as long as a
year.
Defendants unsuccessfully moved for a judgment of acquittal
from the jury verdicts of guilty on all counts; they now appeal
to this Court.
II.
With his lead argument, Janson Strayhorn contends that the
government failed to adduce sufficient evidence to support his
convictions involving the P & S Coins robbery and that the
1
Janson Strayhorn was also charged with two firearm
offenses, Counts Five and Six. But his appellate brief contains
no argument as to Count Five, and Count Six was dismissed at
trial and is thus not before us.
6
district court erred in denying his motion for judgment of
acquittal. We review the denial of his motion for judgment of
acquittal de novo. United States v. Hickman, 626 F.3d 756, 762
(4th Cir. 2010). Specifically, “[w]e review the sufficiency of
the evidence to support a conviction by determining whether
there is substantial evidence in the record, when viewed in the
light most favorable to the government, to support the
conviction.” United States v. Jaensch,
665 F.3d 83, 93 (4th
Cir. 2011) (quotation marks omitted). “‘[S]ubstantial evidence
is evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.’”
Id. (alteration in original)
(quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir.
1996) (en banc)).
“In determining whether the evidence was sufficient to
support a conviction, a reviewing court must determine whether
‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” United
States v. Madrigal–Valadez, 561 F.3d 370, 374 (4th Cir. 2009)
(quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). As we
have emphasized, in sufficiency challenges our focus “is the
complete picture that the evidence presents.”
Burgos, 94 F.3d
at 863. We thus consider the evidence “in cumulative context”
rather than “in a piecemeal fashion[.]”
Id.
7
Defendants were convicted of two counts relating to P & S
Coins. The first was robbery in violation of the Hobbs Act. “A
Hobbs Act violation requires proof of two elements: (1) the
underlying robbery or extortion crime, and (2) an effect on
interstate commerce.” United States v. Williams,
342 F.3d 350,
353 (4th Cir. 2003). The Hobbs Act defines robbery as “the
unlawful taking or obtaining of personal property from the
person . . . by means of actual or threatened force, or
violence, or fear of injury, . . . to his person or property . .
. at the time of the taking or obtaining.” 18 U.S.C. §
1951(b)(1).
The second P & S Coins-related count was for using, by
brandishing, a firearm in violation of 18 U.S.C. § 924(c)(1).
To successfully prosecute that crime, the government “must show
two elements: (1) the defendant used or carried a firearm, and
(2) the defendant did so during and in relation to a drug
trafficking offense or crime of violence.” United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).
We must first determine whether the government presented
sufficient evidence to support Janson Strayhorn’s convictions on
the two P & S Coins-related charges. The centerpiece of the
government’s case against Janson Strayhorn consisted of a
partial fingerprint on an easily movable object, i.e., duct
tape. This Court has spoken on the sufficiency of such
8
fingerprint evidence before, and a close review of our precedent
is instructive.
In United States v. Corso, we reversed a burglary
conviction because we found that the government’s evidence was
insufficient. 439 F.2d 956, 957 (4th Cir. 1971) (per curiam).
In that case, the evidence included the defendant’s fingerprint
on a matchbook cover that had been used by thieves to jam a
lock, screwdrivers, and expert testimony that marks found on the
door where the matchbook had been used had been made by one of
the screwdrivers.
Id. Witnesses also testified that the
defendant made credit purchases with cash down payments soon
after the burglary, and evidence indicated that more than a year
before the burglary, the defendant had worked laying tile in a
nearby building.
Id. We held that the defendant’s fingerprint
on the matchbook cover was insufficient to support a burglary
conviction.
In reaching that conclusion, we noted that “[t]he probative
value of an accused’s fingerprints upon a readily movable object
is highly questionable, unless it can be shown that such prints
could have been impressed only during the commission of the
crime.” Id. Such timing evidence was lacking. Regarding the
rest of the government’s evidence, we explained that some was
without probative value and that the rest constituted an
“accumulation of purely circumstantial evidence” that was
9
insufficient “to permit the jury to find the defendant guilty
beyond a reasonable doubt.” Id.
Similarly, in United States v. Van Fossen, we held that
evidence of fingerprints on two photographic negatives and one
engraving plate could not sustain the defendant’s counterfeiting
conviction because it was not supported by other evidence
indicating that the fingerprints were imprinted at the time of a
crime.
460 F.2d 38, 40-41 (4th Cir. 1972). We focused on the
fact that, “[t]o warrant conviction the trier of fact must be
able to reasonably infer from the circumstances that the
fingerprints were impressed at the time the crime was
committed.”
Id. at 41. But the government had failed to show
when the defendant’s fingerprints were imprinted on these
moveable objects. “For this reason the prosecution rest[ed] on
conjecture and suspicion[,]” and “the jury could only have
guessed” that the imprinting occurred during the commission of
the crime.
Id.
By contrast, in United States v. Harris, we upheld a
conviction where the defendant’s fingerprints were on a note
which read “‘this is a holdup’” that was handed to a teller
during a bank robbery.
530 F.2d 576, 579 (4th Cir. 1976) (per
curiam). Significantly, however, the government presented
additional incriminating evidence, namely, the defendant’s own
“detailed confession[,]” which was admitted even though the
10
defendant repudiated the confession before the trial. Id. In
that context, we found “substantial evidence to permit the jury
to find a guilty verdict beyond a reasonable doubt.”
Id.
Similarly, in United States v. Anderson, we sustained several
bank robbery convictions supported, in part, by fingerprints on
movable objects.
611 F.2d 504, 508-09 (4th Cir. 1979).2 As in
Harris, however, “additional substantial evidence” supported
those convictions.
Id. at 509.
Finally, in Burgos, this Court sustained the defendant’s
drug convictions supported in part by a fingerprint on a plastic
bag containing cocaine base. 94 F.3d at 874-75. Crucially, we
noted that the fingerprint “was not the only incriminating
evidence establishing Burgos’s guilt; rather, there was an
abundance of evidence establishing that Burgos was guilty . . .
.”
Id. That evidence included “conclusive” incriminating
testimony that, for example, the defendant “knew” that his co-
conspirators had crack cocaine on them and that the plan was “to
sell the dope” at a North Carolina university.
Id. at 865, 875.
Viewing these cases holistically, they reveal that in
challenges to convictions involving fingerprints on movable
objects, in the absence of evidence regarding when the
2
We reversed in part as to one robbery, however, because
“no evidence was adduced connecting either appellant
specifically with the crime charged.” Id. at 509 (emphasis
omitted).
11
fingerprints were made, the government must marshal sufficient
additional incriminating evidence so as to allow a rational
juror to find guilt beyond a reasonable doubt. Although the
government may meet this burden with circumstantial evidence,
that evidence must be sufficiently incriminating to support the
conviction.
Here, it is undisputed that the fingerprint evidence
against Janson Strayhorn as to Counts One and Two consists of
one partial fingerprint on the duct tape used in the P & S Coins
robbery. The duct tape is, without question, an easily movable
object. And the government’s expert conceded that he had no way
to determine when Janson Strayhorn’s fingerprint was imprinted
on the tape and that the fingerprint could have been impressed
even a year earlier. The probative value of the fingerprint
evidence here is thus “highly questionable[.]” Corso, 439 F.2d
at 957.
In addition to the partial fingerprint, the “most
significant” incriminating evidence the government offered is
Janson Strayhorn’s “possession” of the Colt Peacemaker.
Appellee’s Br. at 28. That gun had been taken during the P & S
Coins robbery and was found in the Cadillac that Janson
Strayhorn was driving when Butner police stopped him near All
American Coins.
12
In general, unexplained possession of recently stolen
property may permit an inference of theft. See e.g., United
States v. Long, 538 F.2d 580, 581 (4th Cir. 1976). In United
States v. Newsome, this Court looked to the specific facts and
context in determining that such an inference was appropriate.
322 F.3d 328, 333 (4th Cir. 2003). Regarding timing, we found
that “there was evidence closely linking” the timing of the
theft of the trees and subsequent sale of the stolen timber to
nearby mills over a maximum two-week period.
Id. (“Evidence
showed that the trees discovered to have been cut down and
stolen . . . around Memorial Day were sold by the defendants to
the mills on May 24, May 30, and June 6 in close temporal
proximity to their thefts.”). Further, we noted that the
property at issue—cherry tree logs illegally removed from
national forests—was “huge and heavy” and “could [not] easily be
moved and transferred from person to person.”
Id.
Engaging in a similar fact-specific inquiry here, we must
conclude that the gun was no longer recently stolen by the time
Butner police stopped Janson Strayhorn. Regarding timing, two
months had passed between the P & S Coins robbery and Janson
Strayhorn’s arrest near All American Coins. The government
introduced no evidence that Janson Strayhorn possessed the Colt
until the days leading up to the planned robbery of All American
Coins. In fact, Jones testified that the Colt, along with other
13
guns, was at Woodcock’s house and Jones picked it up from her
house to give to Janson Strayhorn in the days before the planned
All American Coins robbery after Jimmy Strayhorn was arrested.
Further, the Colt was small, light, and easily transferable
relative to the “huge and heavy” logs at issue in Newsome. 322
F.3d at 333. In addition, Janson Strayhorn’s possession of the
gun, assuming arguendo that he did knowingly possess it, was not
unexplained. Janson Strayhorn’s brother Jimmy, who participated
in the P & S Coins robbery, asked Janson Strayhorn to commit the
All American Coins robbery to help him post bail. To do so,
Janson Strayhorn drove Jimmy Strayhorn’s girlfriend’s car, where
the Colt was stored in a bag in the back seat. In light of
these facts taken together, Janson Strayhorn’s possession of the
Colt Peacemaker did not properly allow for an inference of his
having participated in its theft from P & S Coins.
Moving beyond the fingerprint and the Colt, the government
submits that Janson Strayhorn’s conspiring with his brother to
commit the second robbery is probative of his guilt on the first
robbery. But this is little more than an impermissible
propensity argument, cf. Fed. R. Evid. 404(b), and certainly
cannot serve to sustain Janson Strayhorn’s P & S Coins-related
convictions.
Finally, the government argues that the fact that
Woodcock’s vehicle was used in both the P & S Coins robbery and
14
the All American Coins incident and that the zip tie found in
Woodcock’s home was the same type as that used in the P & S
Coins robbery somehow demonstrate Janson Strayhorn’s guilt. We
disagree. Although the car and zip tie might demonstrate
Woodcock’s involvement (or that of Jimmy Strayhorn, who was at
least an occasional occupant of the Woodcock residence), this
evidence is not helpful in answering the question presented
here: whether substantial evidence linked Janson Strayhorn to
the commission of the P & S Coins robbery.
In sum, a fingerprint on an easily movable object with no
evidence of when it was imprinted is sufficient to support a
conviction only when it is accompanied by additional
incriminating evidence which would allow a rational juror to
find guilt beyond a reasonable doubt. Here, the government
failed to adduce such evidence. Accordingly, we reverse the
district court’s denial of Janson Strayhorn’s motion for
judgment of acquittal on Counts One and Two.3
III.
Janson Strayhorn also argues that the government failed to
provide sufficient evidence to support his convictions on Counts
3
Because we reverse the denial of Janson Strayhorn’s motion
for judgment of acquittal on the P & S Coins-related counts, we
need not address his argument that the district court improperly
excluded Kenneth Jones’s exculpatory testimony as to the P & S
Coins robbery.
15
Three and Four involving the conspiracy to rob All American
Coins. Again, “[w]e review the sufficiency of the evidence to
support a conviction by determining whether there is substantial
evidence in the record, when viewed in the light most favorable
to the government, to support the conviction.” Jaensch, 665
F.3d at 93 (quotation marks omitted). And substantial evidence
is “evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.”
Id. (quotation marks
omitted).
To prove a Hobbs Act conspiracy, the government must prove
that the defendant agreed with at least one other person to
commit acts that would satisfy the following three elements:
(1) that the defendant coerced the victim to part with
property; (2) that the coercion occurred through the
wrongful use of actual or threatened force, violence
or fear or under color of official right; and (3) that
the coercion occurred in such a way as to affect
adversely interstate commerce.
United States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990).
To prove the firearm charge in violation of 18 U.S.C. §
924(c)(1), the government must show that the defendant used or
carried a firearm and that he did so during and in relation to a
drug trafficking crime or a crime of violence. Mitchell, 104
F.3d at 652.
16
Janson Strayhorn argues that he intended to sell the Colt
Peacemaker rather than rob All American Coins. Even assuming
that to be true, substantial record evidence supports Janson
Strayhorn’s All American Coins-related convictions.
Specifically, recorded telephone calls that Jimmy Strayhorn
placed from the Guilford County Jail reflect that Janson
Strayhorn wanted to “get rid of that gun” but that Jimmy
Strayhorn suggested Janson Strayhorn “use it” instead. Supp.
J.A. 4. Defendants then discussed how much money Jimmy
Strayhorn needed to make bail, and Jimmy Strayhorn described a
“move” that would enable Janson Strayhorn to raise all of the
money. Supp. J.A. 5-7. Although Janson Strayhorn stated that
“[his] face ain’t going to be seen” and that he intended to go
only to “show[] them where it’s at[,]” he nevertheless plainly
agreed to do the “move” the next day: the morning of October 28,
2010. Supp. J.A. 7-8. The plans failed on October 28 because
Jones was unavailable. On October 29, Defendants and Woodcock
discussed the robbery again on a recorded call, and Jimmy
Strayhorn described the plan in detail: Janson Strayhorn would
get Woodcock’s car and pick up Jones, they would “make that
move[,]” and then Janson Strayhorn would return the car to
Woodcock. Supp. J.A. 25. The transcript of the phone calls
leaves little, if any, doubt that Janson Strayhorn agreed to the
plan, even if he did so reluctantly.
17
The government also proffered the transcript of a phone
call that Janson Strayhorn placed to Woodcock after he had been
arrested. That call reflects Janson Strayhorn’s anger at having
agreed to the plan. Janson Strayhorn further stated that he was
“thankful we ain’t caught in no act of doing nothing[,]” but
that they were stopped before the robbery commenced. Supp. J.A.
37-38.
In addition to the recorded calls, the evidence reflected
that Janson Strayhorn took steps to carry out the robbery.
First, Jones testified that Janson Strayhorn drove him to Butner
using Woodcock’s car. Second, Butner police stopped Janson
Strayhorn after seeing him drive Woodcock’s car past All
American Coins with Jones as a passenger. Third, a search of
the car turned up two guns.
In sum, the record contains substantial evidence, when
viewed in the light most favorable to the government, to support
Janson Strayhorn’s All American Coins-related convictions. The
district court did not, therefore, err in denying his motion for
judgment of acquittal as to Counts Three and Four.
18
IV.
Finally, Jimmy Strayhorn appeals his sentence as to his
Section 924 offense.4 We hold, as the government conceded, that
Jimmy Strayhorn’s case must be remanded for resentencing in
light of Alleyne v. United States, 133 S. Ct. 2151 (2013). In
Alleyne, the Supreme Court overruled prior case law and held
that “any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.” Alleyne, 133 S.
Ct. at 2155, 2158-63. In Alleyne, as here, the defendant was
convicted of robbery affecting commerce and use of a firearm
during and in relation to a crime of violence under Section 924.
The Supreme Court noted that the district court “imposed [a] 7–
year mandatory minimum sentence based on its finding by a
preponderance of evidence that [a] firearm was ‘brandished.’”
Id. at 2163. But because the brandishing finding “increased the
penalty to which the defendant was subjected, it was an element,
which had to be found by the jury beyond a reasonable doubt.”
Id. The Court thus vacated the defendant’s sentence and
4
Janson Strayhorn also appealed his sentence relating to
the order of sentencing on multiple Section 924 convictions.
Because we reverse the district court’s denial of Janson
Strayhorn’s motion for judgment of acquittal as to the P & S
Coins-related Section 924 conviction, he now has only one
Section 924 conviction (for which he did not receive a
brandishing enhancement) and his argument is moot.
19
remanded for resentencing in accordance with the jury’s verdict,
i.e., without the increased prison time for brandishing.
Although the Supreme Court decided Alleyne after the
conclusion of Jimmy Strayhorn’s trial and sentencing, Alleyne
nevertheless applies because this appeal was still pending.
Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule
for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct
review or not yet final, with no exception for cases in which
the new rule constitutes a ‘clear break’ with the past.”).
In this case, Count Two charged Jimmy Strayhorn with
“knowingly carry[ing] and us[ing], by brandishing, a firearm”
during the P & S Coins robbery in violation of 18 U.S.C. §
924(c)(1)(A)(ii). The district court’s jury instructions
reflected that brandishing was one method of “using” the firearm
rather than an element of the charged offense. See J.A. 683
(“To use a firearm means to brandish it, to point it at a
person, to display it visibly, to fire it, to specifically refer
to or speak about it, or otherwise to actively employ the gun
during or in relation to the robbery.”). However, the jury
needed to find that the defendants brandished a firearm as an
element of the offense for the higher mandatory minimum to
apply. Because the record reflects that the jury made no such
brandishing finding here, the enhanced mandatory minimum for
20
brandishing must fall as it did in Alleyne. Accordingly, we
vacate Jimmy Strayhorn’s sentence on Count Two and remand for
resentencing.
V.
For the foregoing reasons, we reverse the judgment of the
district court as to Janson Strayhorn’s convictions on Counts
One and Two, affirm Janson Strayhorn’s convictions on Counts
Three and Four, and vacate the sentence and remand Janson
Strayhorn’s case for resentencing in light of our disposition on
his motion for judgment of acquittal. Further, we vacate and
remand Jimmy Strayhorn’s case for resentencing in light of the
Alleyne error.
AFFIRMED IN PART, REVERSED IN PART,
AND VACATED AND REMANDED FOR RESENTENCING
21
