Case: 18-14077 Date Filed: 11/13/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14077 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-00399-ELR-CMS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONTE DESHAWN ALSTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(November 13, 2019)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
Donte Alston, a federal prisoner, pled guilty to a two-count federal
indictment charging him with (1) armed bank robbery, in violation of 18 U.S.C. §§ Case: 18-14077 Date Filed: 11/13/2019 Page: 2 of 7
2113(a) and (d) (Count One); and (2) brandishing a firearm during a crime of
violence (i.e. the armed bank robbery), in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(Count Two). At sentencing, the District Court imposed a total sentence of 121
months – 37 months on Count One and 84 months on Count Two. On appeal,
Alston first argues that his conviction for armed bank robbery does not qualify as a
“crime of violence” under 18 U.S.C. § 924(c)(3)(A)’s “elements clause.” He
contends that published orders in our Circuit stating otherwise, in the context of
second or successive applications for habeas corpus relief, do not (or, more
accurately, should not) constitute binding precedent. Second, Alston argues that
his within-guideline sentence on Count One was substantively unreasonable
because the District Court ignored mitigating factors, including his lack of criminal
history, drug addiction, and difficult upbringing. We reject Alston’s arguments
and affirm his sentence.
I.
We turn first to Alston’s argument that his conviction for armed bank
robbery does not constitute a “crime of violence.” 18 U.S.C. § 924(c) provides a
mandatory minimum sentence of seven years for anyone who brandishes a firearm
during the commission of any crime of violence or drug trafficking crime. 18
U.S.C. § 924(c)(1)(A)(ii). For the purposes of § 924(c), “crime of violence” means
an offense that is a felony under federal law and:
2 Case: 18-14077 Date Filed: 11/13/2019 Page: 3 of 7
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Id. § 924(c)(3)(A)–(B). These two sections are respectively known as the
“elements clause,” § 924(c)(3)(A), and the “residual clause,” § 924(c)(3)(B).
United States v. Davis, 139 S. Ct. 2319, 2324 (2019). The Supreme Court in
United States v. Davis held that § 924(c)(3)(B)’s residual clause is
unconstitutionally vague. Id. at 2336. Nevertheless, this Court has held that armed
bank robbery otherwise qualifies as a crime of violence under the elements clause
of § 924(c), which Davis did not address and remains valid. In re Hines, 824 F.3d
1334, 1337 (11th Cir. 2016); see also In re Pollard, 931 F.3d 1318, 1321 (11th Cir.
2019) (indicating that a Davis challenge is futile when the crime for which the
defendant was convicted also satisfies the § 924(c)(3)(A) elements clause).
Under our prior precedent rule, “a prior panel’s holding is binding on all
subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc.” United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The prior panel precedent rule
applies with equal force as to prior published decisions on applications to file
second or successive habeas corpus petitions, which are binding precedent. In re
Lambrix, 776 F.3d 789, 794 (11th Cir. 2015). Further, published orders in the 3 Case: 18-14077 Date Filed: 11/13/2019 Page: 4 of 7
context of second or successive applications are binding precedent in direct
appeals. United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018).
Here, Alston’s challenges to his § 924(c) conviction are foreclosed by
binding precedent that armed bank robbery is a qualifying crime of violence under
§ 924(c)(3)(A). Hines, 824 F.3d at 1337. Hines was decided in the context of a
second or successive habeas petition and, per the rule put forth in St. Hubert,
constitutes binding precedent in direct appeals. St. Hubert, 909 F.3d at 346.
Alston contends that St. Hubert was “wrongly decided” and that decisions in the
context of second or successive applications should not constitute binding
precedent, but St. Hubert is the law in our Circuit. Therefore, we are required here
to follow our decision in Hines, regardless of the procedural context of that
decision.1 St. Hubert, 909 F.3d at 346. Therefore, we affirm Alston’s Count Two
conviction for brandishing a firearm during a crime of violence.
II.
We next turn to Alston’s challenge to his 37-month sentence on Count One,
the armed bank robbery count. We review the reasonableness of a sentence under
the deferential abuse of discretion standard of review. Gall v. United States, 552
1 Alston filed a motion to stay appellate proceedings pending the grant or denial of certiorari in U.S. Supreme Court case 18-6172, Sherman Williams v. United States, which presents the question of whether treating decisions in the context of second or successive petitions as binding precedent is constitutional. This Court denied Alston’s motion to stay. 4 Case: 18-14077 Date Filed: 11/13/2019 Page: 5 of 7
U.S. 38, 51, 128 S. Ct. 586, 597 (2007). In reviewing a sentence for
unreasonableness, we consider whether the district court abused its discretion in
concluding that the factors found in 18 U.S.C. § 3553(a) support the sentence. Id.
Under § 3553(a)(2), the district court must impose a sentence that is
sufficient, but not greater than necessary, to: (1) reflect the seriousness of the
offense, (2) promote respect for the law, (3) provide just punishment for the
offense, (4) deter criminal conduct, and (5) protect the public from the defendant’s
future criminal conduct. The court must also consider the criminal history and
characteristics of the defendant. Id. § 3553(a)(1). However, the district court need
not specifically address every mitigating factor raised by the defendant for the
sentence to be substantively reasonable, see United States v. Snipes, 611 F.3d 855,
873 (11th Cir. 2010), and a court’s refusal to grant a downward variance alone
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 18-14077 Date Filed: 11/13/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14077 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-00399-ELR-CMS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONTE DESHAWN ALSTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(November 13, 2019)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
Donte Alston, a federal prisoner, pled guilty to a two-count federal
indictment charging him with (1) armed bank robbery, in violation of 18 U.S.C. §§ Case: 18-14077 Date Filed: 11/13/2019 Page: 2 of 7
2113(a) and (d) (Count One); and (2) brandishing a firearm during a crime of
violence (i.e. the armed bank robbery), in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(Count Two). At sentencing, the District Court imposed a total sentence of 121
months – 37 months on Count One and 84 months on Count Two. On appeal,
Alston first argues that his conviction for armed bank robbery does not qualify as a
“crime of violence” under 18 U.S.C. § 924(c)(3)(A)’s “elements clause.” He
contends that published orders in our Circuit stating otherwise, in the context of
second or successive applications for habeas corpus relief, do not (or, more
accurately, should not) constitute binding precedent. Second, Alston argues that
his within-guideline sentence on Count One was substantively unreasonable
because the District Court ignored mitigating factors, including his lack of criminal
history, drug addiction, and difficult upbringing. We reject Alston’s arguments
and affirm his sentence.
I.
We turn first to Alston’s argument that his conviction for armed bank
robbery does not constitute a “crime of violence.” 18 U.S.C. § 924(c) provides a
mandatory minimum sentence of seven years for anyone who brandishes a firearm
during the commission of any crime of violence or drug trafficking crime. 18
U.S.C. § 924(c)(1)(A)(ii). For the purposes of § 924(c), “crime of violence” means
an offense that is a felony under federal law and:
2 Case: 18-14077 Date Filed: 11/13/2019 Page: 3 of 7
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Id. § 924(c)(3)(A)–(B). These two sections are respectively known as the
“elements clause,” § 924(c)(3)(A), and the “residual clause,” § 924(c)(3)(B).
United States v. Davis, 139 S. Ct. 2319, 2324 (2019). The Supreme Court in
United States v. Davis held that § 924(c)(3)(B)’s residual clause is
unconstitutionally vague. Id. at 2336. Nevertheless, this Court has held that armed
bank robbery otherwise qualifies as a crime of violence under the elements clause
of § 924(c), which Davis did not address and remains valid. In re Hines, 824 F.3d
1334, 1337 (11th Cir. 2016); see also In re Pollard, 931 F.3d 1318, 1321 (11th Cir.
2019) (indicating that a Davis challenge is futile when the crime for which the
defendant was convicted also satisfies the § 924(c)(3)(A) elements clause).
Under our prior precedent rule, “a prior panel’s holding is binding on all
subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc.” United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The prior panel precedent rule
applies with equal force as to prior published decisions on applications to file
second or successive habeas corpus petitions, which are binding precedent. In re
Lambrix, 776 F.3d 789, 794 (11th Cir. 2015). Further, published orders in the 3 Case: 18-14077 Date Filed: 11/13/2019 Page: 4 of 7
context of second or successive applications are binding precedent in direct
appeals. United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018).
Here, Alston’s challenges to his § 924(c) conviction are foreclosed by
binding precedent that armed bank robbery is a qualifying crime of violence under
§ 924(c)(3)(A). Hines, 824 F.3d at 1337. Hines was decided in the context of a
second or successive habeas petition and, per the rule put forth in St. Hubert,
constitutes binding precedent in direct appeals. St. Hubert, 909 F.3d at 346.
Alston contends that St. Hubert was “wrongly decided” and that decisions in the
context of second or successive applications should not constitute binding
precedent, but St. Hubert is the law in our Circuit. Therefore, we are required here
to follow our decision in Hines, regardless of the procedural context of that
decision.1 St. Hubert, 909 F.3d at 346. Therefore, we affirm Alston’s Count Two
conviction for brandishing a firearm during a crime of violence.
II.
We next turn to Alston’s challenge to his 37-month sentence on Count One,
the armed bank robbery count. We review the reasonableness of a sentence under
the deferential abuse of discretion standard of review. Gall v. United States, 552
1 Alston filed a motion to stay appellate proceedings pending the grant or denial of certiorari in U.S. Supreme Court case 18-6172, Sherman Williams v. United States, which presents the question of whether treating decisions in the context of second or successive petitions as binding precedent is constitutional. This Court denied Alston’s motion to stay. 4 Case: 18-14077 Date Filed: 11/13/2019 Page: 5 of 7
U.S. 38, 51, 128 S. Ct. 586, 597 (2007). In reviewing a sentence for
unreasonableness, we consider whether the district court abused its discretion in
concluding that the factors found in 18 U.S.C. § 3553(a) support the sentence. Id.
Under § 3553(a)(2), the district court must impose a sentence that is
sufficient, but not greater than necessary, to: (1) reflect the seriousness of the
offense, (2) promote respect for the law, (3) provide just punishment for the
offense, (4) deter criminal conduct, and (5) protect the public from the defendant’s
future criminal conduct. The court must also consider the criminal history and
characteristics of the defendant. Id. § 3553(a)(1). However, the district court need
not specifically address every mitigating factor raised by the defendant for the
sentence to be substantively reasonable, see United States v. Snipes, 611 F.3d 855,
873 (11th Cir. 2010), and a court’s refusal to grant a downward variance alone
does not demonstrate that the district court failed to afford consideration to
mitigating factors. United States v. Lebowitz, 676 F.3d 1000, 1016 (11th Cir.
2012).
The weight given to any specific § 3553(a) factor is left to the district court’s
sound judgment. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). A
district court abuses its discretion by: (1) failing to consider relevant factors that
were due significant weight; (2) giving an improper or irrelevant factor substantial
weight; or (3) committing a clear error of judgment by balancing proper factors
5 Case: 18-14077 Date Filed: 11/13/2019 Page: 6 of 7
unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en
banc).
We ordinarily expect a sentence within the guideline range to be reasonable,
and the defendant bears the burden of showing otherwise. United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). A sentence well below the
statutory maximum penalty is another indicator of reasonableness. See id. Only
after giving full deference to the district judge and determining that the sentence
imposed was truly unreasonable will we set aside a sentence. Irey, 612 F.3d at
1191.
Here, the District Court did not abuse its discretion by imposing a 37-month
sentence for the offense of armed bank robbery. The record indicates that the
District Court considered evidence of mitigating factors presented by Alston.
Specifically, the Court considered his age, lack of criminal history, and acceptance
of responsibility. Additionally, during the sentencing hearing, the District Court
heard testimony that around the time of the offense, Alston was addicted to
cannabis, pharmaceuticals, and cocaine, and involved with the “wrong crowd.”
The Court heard that before that time period, he had graduated high school, been a
caretaker for his two younger sisters, and had a steady job at Home Depot, an
apartment, and a car. In calculating the proper sentence, the Court considered the
seriousness of the offense, including the fact that Alston pointed a gun at a bank
6 Case: 18-14077 Date Filed: 11/13/2019 Page: 7 of 7
teller and then fled, leading police on a high speed chase. On balance, the Court
concluded that Alston deserved a sentence at the bottom of his guidelines range,
but chose not to grant a downward variance from the range.
Alston has not met his burden of showing that the District Court abused its
discretion in imposing this sentence. Gonzalez, 550 F.3d at 1324. The District
Court imposed a sentence on Count One that was within Alston’s guidelines range
and was significantly below the statutory maximum of 300 months for armed bank
robbery, two indicia of reasonableness. See id. The Court heard and considered
the mitigating evidence, as discussed above, but determined any mitigating
circumstances were overshadowed by the seriousness of the offense and no
downward variance was warranted. We cannot conclude that the District Court, in
its discretion, arrived at a sentence that “truly is unreasonable.” Irey, 612 F.3d at
Accordingly, Alston has failed to show that his sentence was substantively
unreasonable. We affirm the 37-month sentence on Count One imposed by the
District Court.
AFFIRMED.