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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13978 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-00421-SCJ-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH ORLANDO HOOD,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
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Before WILSON, LAGOA and BRASHER, Circuit Judges.
PER CURIAM:
Joseph Hood appeals from his convictions and 468-month total sentence for
Hobbs Act robbery, 18 U.S.C. § 1951(a), discharging a firearm in furtherance of a
crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii), and brandishing a firearm in
furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). Prior to the
commencement of trial, the district court ordered that Hood be placed in leg irons
to protect the safety and decorum of the courtroom. It also ordered the irons to be
taped and the counsel tables to be draped with white cloths. At trial, the
government introduced evidence regarding Hood’s flight from the scene of a
robbery for which he was not charged and his attempted escape from a hospital
room after his flight. The two incidents occurred within a week of the robberies
that he was charged with but prior to the filing of his indictment. The government
also introduced expert fingerprint evidence.
On appeal, Hood argues that: (1) the district court abused its discretion in
ordering him to wear leg irons during his trial; (2) the district court abused its
discretion in determining that the government’s expert fingerprint evidence, which
relied on a method known as ACE-V, was sufficiently reliable under Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); (3) the district court abused its
discretion in allowing the government to present the evidence of his flight from the
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robbery scene and his attempted escape from the hospital room as evidence of his
guilt; and (4) his sentence is substantively unreasonable.
I.
We review the district court’s decision to require a defendant to wear leg
irons at trial for abuse of discretion. United States v. Mayes, 158 F.3d 1215, 1219
(11th Cir. 1998). “A district court abuses its discretion if it applies an incorrect
legal standard, follows improper procedures in making the determination, or makes
findings of fact that are clearly erroneous.” United States v. Khan, 794 F.3d 1288,
1293 (11th Cir. 2015).
Leg irons should be used “as rarely as possible” because they may
undermine the presumption of innocence, confuse the defendant, impair the
defendant’s ability to confer with counsel, and affect the defendant’s trial strategy.
United States v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002). The decision to
require leg irons “must be subjected to close judicial scrutiny to determine if there
was an essential state interest furthered by compelling a defendant to wear shackles
and whether less restrictive, less prejudicial methods of restraint were considered
or could have been employed.” Id. Essential state interests include providing
physical security, preventing escape attempts, and protecting courtroom decorum.
Deck v. Missouri, 544 U.S. 622, 628 (2005); see also Mayes, 158 F.3d at 1225
(explaining that courtroom security is a competing interest that may justify
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requiring a defendant to wear leg irons). The district court must place its reasons
for requiring security measures, including leg irons, on the record. Durham, 287
F.3d at 1304. If the district orders a defendant to wear leg irons “without adequate
justification,” the shackling is presumptively prejudicial unless the government
proves beyond a reasonable doubt that it did not contribute to the jury’s verdict.
Deck, 544 U.S. at 635.
In deciding whether to require leg irons, the district court must assess the
particular circumstances of the case. Id. at 632. In doing so, the district court may
consider a number of factors that reasonably bear upon the security of the
courtroom or the danger of escape, including the defendant’s history and
background, the nature of the charges and whether the charges include violent
conduct, and prior instances where the defendant disrupted judicial proceedings.
United States v. Baker, 432 F.3d 1189, 1244 (11th Cir. 2005), abrogated on other
grounds by Davis v. Washington, 547 U.S. 813 (2006). The district court may also
consider the expertise and experience of a U.S. marshal, although it may not rely
solely on a marshal’s recommendation without independently considering the facts
and circumstances of the case. Mayes, 158 F.3d at 1226.
Here, the district court did not abuse its discretion in ordering Hood to be
placed in leg irons during his trial. As an initial matter, a party abandons an issue
by failing to prominently raise it in his initial brief, by only raising it in a
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perfunctory manner without supporting arguments and authority, or by making
only “passing references to it that are background to other arguments or [are]
buried within other arguments, or both.” United States v. Corbett, 921 F.3d 1032,
1043 (11th Cir. 2019) (alteration in original) (internal quotation marks omitted). A
party also abandons an issue by raising it for the first time in his reply brief.
United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004) (per curiam). Here,
Hood has abandoned his argument regarding the discrepancies between the district
court’s oral and written orders by raising it for the first time in his reply brief. For
the same reason, he has also abandoned his argument regarding the government’s
unsubstantiated claim of his prior escape attempt from a courtroom holding cell.
We also find no abuse of discretion because the district court’s shackling
order furthered the interests of protecting courtroom security and decorum. To
protect those interests, it considered a number of factors that this court has
determined to be relevant, including: (1) Hood’s criminal history; (2) the nature of
Hood’s charges, which involved a series of violent armed robberies; (3) Hood’s
escape attempt from the hospital after his arrest; and (4) Hood’s escape attempt
from custody while awaiting a judicial proceeding, which the government
proffered at the sidebar. It was proper for the district court to also consider the
marshal’s recommendation, which reflected the marshal’s experience, because it
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did not rely solely on that recommendation without independently considering
Hood’s circumstances.
Because the district court’s shackling order was adequately justified, this
court does not need to address whether the order was harmless beyond a reasonable
doubt. See Deck, 544 U.S. at 635. We therefore find no abuse of discretion and
affirm.
II.
We review the district court’s rulings as to the admissibility of expert
testimony and the reliability of an expert opinion for an abuse of discretion.
United States v. Abreu, 406 F.3d 1304, 1305–06 (11th Cir. 2005) (per curiam).
Federal Rule of Evidence 702 provides that a qualified expert whose
knowledge is helpful to the trier of fact may testify if: (1) her “testimony is based
on sufficient facts or data”; (2) her “testimony is the product of reliable principles
and methods”; and (3) she “has reliably applied the principles and methods to the
facts of the case.” Fed. R. Evid. 702. The district court has “wide latitude” in
deciding how to determine an expert’s reliability under Rule 702. Abreu, 406 F.3d
at 1307. However, a court generally will consider a number of the factors
enumerated in Daubert, which include: “(1) whether the expert’s theory can be and
has been tested; (2) whether the theory has been subjected to peer review and
publication; (3) the known or potential rate of error of the particular scientific
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technique; and (4) whether the technique is generally accepted in the scientific
community.” Id. at 1306–07.
The district court serves a “gatekeeping function” in deciding whether
scientific or technical evidence is admissible. Id. at 1306 (internal quotation mark
omitted). Thus, “it is not the role of the district court to make ultimate conclusions
as to the persuasiveness of the proffered evidence.” United States v. Barton, 909
F.3d 1323, 1332 (11th Cir. 2018). Further, the appropriate safeguards against
“shaky but admissible evidence” are cross-examination, presentation of contrary
evidence, and careful instruction as to the burden of proof. Daubert, 509 U.S. at
596.
We have previously upheld the admission of fingerprint evidence as being
sufficiently reliable under Daubert. Abreu, 406 F.3d at 1307. We reasoned that
(1) other federal circuits had determined that such evidence was sufficiently
reliable under Daubert; (2) district courts in general are given broad latitude in
deciding how to determine reliability; and (3) the district court had considered
information provided by the government regarding the uniform practice followed
by fingerprint examiners and the error rate of fingerprint identification. Id.
Moreover, a number of federal courts of appeal have determined that
fingerprint evidence that relies on the ACE-V method is sufficiently reliable. See,
e.g., United States v. Herrera, 704 F.3d 480, 484–87 (7th Cir. 2013) (determining
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that “responsible” fingerprint identification under ACE-V is admissible, even
though the method is subjective and is less scientifically rigorous than DNA
evidence); United States v. Pena, 586 F.3d 105, 110–11 (1st Cir. 2009)
(determining that fingerprint evidence based on ACE-V was admissible in light of
the consensus among federal courts that the method satisfies Daubert despite
concerns with the method’s subjectivity); United States v. Baines, 573 F.3d 979,
989–92 (10th Cir. 2009) (expressing concern as to ACE-V’s subjectivity, but
noting its “overwhelming acceptance” by experts in the fingerprint industry).
Here, the district court did not abuse its discretion in determining that the
expert fingerprint evidence was sufficiently reliable under Daubert, which is the
only element of Daubert that Hood properly challenges on appeal. In determining
that the evidence was reliable, the district court acted in accordance with our
caselaw and the decisions of other circuits that have upheld such evidence as
reliable under Daubert, notwithstanding the subjective nature of the ACE-V
method. In addition, Hood was able to attack the expert’s methodology through
cross-examination at trial, and the district court instructed the jury as to the burden
of proof and the nature of expert testimony. Accordingly, we affirm as to this
issue.
III.
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We review the district court’s decision to admit evidence of a defendant’s
flight for abuse of discretion, and that decision will not be overturned “absent a
showing of clear abuse.” United States v. Blakey, 960 F.2d 996, 1001 (11th Cir.
1992).
“Evidence of flight is admissible to demonstrate consciousness of guilt and
thereby guilt.” Id. at 1000. The probative value of a flight evidence depends on
the extent to which it allows for the factfinder to make inferential steps: “(1) from
the defendant’s behavior to flight; (2) from flight to consciousness of guilt;
(3) from consciousness of guilt to consciousness of guilt concerning the crime
charged; and (4) from consciousness of guilt concerning the crime charged to
actual guilt of the crime charged.” United States v. Borders, 693 F.2d 1318, 1325
(11th Cir. 1982). Inferences from a defendant’s flight must be “made cautiously
and with a sensitivity to the facts of the particular case.” Id.
The probative value of flight evidence is diminished if the defendant was not
aware at the time of his flight that he was the subject of a criminal investigation for
the particular crime that he was charged with. Id. at 1325–26. It is also diminished
if there is a significant time delay, such as a period of several months, between the
time when the defendant becomes aware that he is the subject of a criminal
investigation and the time of his flight. Id. at 1326.
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Also in Borders, we determined that neither concern was present where the
evidence showed that a conspirator fled a hotel shortly after he learned that law
enforcement wished to interview him, was informed that it would be advisable to
have counsel present during the interview, and learned that a co-conspirator had
been arrested in connection with the subject of the interview. Id. at 1323–24,
1326–27; see also United States v. Beard, 775 F.2d 1577, 1579, 1581 (11th Cir.
1985) (determining that flight evidence was admissible where the defendants, after
observing a law enforcement officer, engaged in a four-mile car chase until they
were ultimately pulled over and arrested).
In United States v. Ramon-Perez, we determined that flight evidence was
admissible where, after being indicted and released on bond, the defendant
transferred ownership of his car, quit his job, and moved to another state a little
over a month after his indictment had been filed and shortly before a scheduled
hearing. 703 F.2d 1231, 1232–33 (11th Cir. 1983) (per curiam). We reasoned
that, although “many other reasons other than a flight from justice” could have
motivated the defendant’s move, he offered no alternative explanation, and the
flight occurred several days before the scheduled hearing. Id. at 1233. While the
time delay between the defendant’s indictment and his flight and his careful
preparations regarding his car and job lessened the evidence’s probative value,
those circumstances did not render it inadmissible. Id.
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Here, the district court did not abuse its discretion in admitting the evidence
of Hood’s flight from the robbery scene and attempted escape from the hospital as
evidence of his consciousness of guilt. It is unclear whether Hood was under
investigation at the time of the two incidents. Further, his indictment had not yet
been filed. However, the jury could have inferred his consciousness of guilt based
on the temporal proximity of the incidents to the charged robberies and the
presence of several distinctive items that he possessed at the time of his flight from
the robbery scene that tied him to the charged robberies. Therefore, we affirm.
IV.
In determining whether a sentence is reasonable, we apply an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
party challenging the sentence bears the burden of demonstrating that the sentence
is unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United
States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).
In reviewing the reasonableness of a sentence, we first consider whether the
district court committed any significant procedural error. Gall, 552 U.S. at 51. We
next consider the substantive reasonableness of a sentence, taking into account the
totality of the circumstances. Id. On substantive reasonableness review, we will
vacate the 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)
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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, 612 F.3d 1160, 1190 (11th
Cir. 2010) (en banc). While we do not presume that a within-guideline sentence is
reasonable, we typically expect such a sentence to be reasonable. United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Also, the fact that a sentence falls well
below the statutory maximum is an indicator of a reasonable sentence. United
States v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016).
The statutory maximum term of imprisonment for a violation of 18 U.S.C.
§ 1951(a) is 20 years. 18 U.S.C. § 1951(a). The statutory maximum term of
imprisonment for a violation of 18 U.S.C. § 924(c)(1)(A)(ii) or (iii) is life. Id.
§ 924(c)(1)(A)(ii), (iii).
The district court must impose a sentence that is “sufficient, but not greater
than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),
which include reflecting the seriousness of the offense, promoting respect for the
law, providing just punishment, affording adequate deterrence, protecting the
public from the defendant’s further crimes, and providing the defendant with
appropriate correctional treatment. 18 U.S.C. § 3553(a)(2). The district court must
also take into consideration the “nature and circumstances” of the offense and the
“history and characteristics” of the defendant. Id. § 3553(a)(1). In addition, the
statute directs the district court to consider the types of sentences available, the
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applicable guideline range, any pertinent policy statement issued by the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the need to
provide restitution to victims. Id. § 3553(a)(3)–(7). A defendant’s criminal history
“fits squarely” into the § 3553(a) category that requires the district court to
consider the history and characteristics of the defendant. United States v. Williams,
526 F.3d 1312, 1324 (11th Cir. 2008) (per curiam).
The district court may “determine, on a case-by-case basis, the weight to
give the Guidelines, so long as that determination is made with reference to the
remaining section 3553(a) factors that the court must also consider in calculating
the defendant’s sentence.” Irey, 612 F.3d at 1217. The weight accorded to any
one § 3553(a) factor is a matter “committed to the sound discretion of the district
court,” and it may attach “great weight” to one factor over others. Rosales-Bruno,
789 F.3d at 1254. However, a district court’s unjustified reliance on a single
§ 3553(a) factor may be a “symptom” of unreasonableness. United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008). A district court abuses its discretion and
imposes a substantively unreasonable sentence when it “(1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” Irey, 612 F.3d at 1189. The
district court is not required to explicitly address each of the § 3553(a) factors or
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all of the mitigating evidence. United States v. Amedeo, 487 F.3d 823, 833 (11th
Cir. 2007).
Hood’s sentence is substantively reasonable. The fact that his sentence falls
well below the statutory maximum applicable to four of his convictions and below
his guideline imprisonment range indicates as much. The district court
demonstrated that it properly applied several of the 18 U.S.C. § 3553(a) factors in
exercising its discretion to vary downward from Hood’s guideline imprisonment
range, including by considering his difficult upbringing, his lack of remorse for his
offense, his extensive and violent criminal history, the impact that his offense had
on its victims, the violent nature of his offense, and the danger that he posed to the
public. Accordingly, we affirm.
AFFIRMED.