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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-12935 Non-Argument Calendar ________________________
D.C. Docket No. 5:11-cr-00404-KOB-PWG-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST LASHAWN STARKS, CAMERON RASHUN BYRD,
Defendants - Appellants.
________________________
Appeals from the United States District Court for the Northern District of Alabama ________________________
(September 3, 2013)
Before HULL, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
Ernest Lashawn Starks and Cameron Rashun Byrd appeal their convictions
after a jury trial on carjacking and firearms offenses and the sentences they Case: 12-12935 Date Filed: 09/03/2013 Page: 2 of 16
received for those convictions. Both contend the evidence was insufficient to
support their convictions. In addition, Byrd argues portions of his sentence violate
the Constitution. And Starks asserts that he should not have been tried together
with Byrd and that his sentence is substantively unreasonable. After careful
review, we affirm in all respects.
I.
A. Pretrial
Police arrested Starks, Byrd, and two other men — Kevin Holmes and
Thomas Omar Flowers — on suspicion that they were involved in a carjacking and
a convenience-store robbery. Subsequently, a grand jury issued an indictment
charging Byrd with aiding and abetting a carjacking, in violation of 18 U.S.C.
§ 2119 (1), brandishing a firearm in connection with the carjacking, in violation of
18 U.S.C. § 924(c), and carrying and using a firearm in connection with an armed
robbery, in violation of 18 U.S.C. § 924(c). Starks was charged with aiding and
abetting a carjacking and brandishing a firearm in connection with the carjacking.
Before their cases went to trial, Starks filed a “Motion to Sever Due to
Bruton Issue” under Federal Rule of Criminal Procedure 14, seeking severance of
his trial from Byrd’s. He contended a joint trial would violate his Sixth
Amendment rights, as explained in Bruton v. United States, 391 U.S. 123 (1968), if
the government introduced Byrd’s out-of-court confession. In response, the
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government represented that Byrd’s confession would not be entered into evidence
unless Byrd took the stand, so Burton was not implicated. The district court agreed
and denied Starks’s motion. Byrd’s confession was not offered at trial.
B. Trial
We recount the facts adduced at trial in the light most favorable to the
verdict, resolving all reasonable inferences and credibility evaluations in favor of
the jury’s finding of guilt. United States v. Kaplan, 171 F.3d 1351, 1355 n.13
(11th Cir. 1999). 1 Byrd, Flowers, and Holmes left the Alabama A&M University
dorms in a Jeep Cherokee to buy cigarettes late on the evening of May 11, 2011.
While they were out, Byrd received a phone call from Starks, Flowers’s cousin,
inviting the three over to his house. When they arrived, Starks was in the
driveway, and he told Flowers that he wanted to drive the Jeep to buy cigars.
Once they left his house, however, Starks began talking with Byrd, who was sitting
in the passenger seat, about committing a robbery to get money. Because Flowers
did not want his mother’s Jeep used in a robbery, Starks parked at a liquor store to
scout for a car they could steal to use.
Unfortunately, an individual identified as K.E.N. pulled his Ford Taurus into
a parking spot in the liquor store lot right next to the Jeep and left his doors
unlocked. While K.E.N. was inside purchasing beer, Starks asked who in the Jeep
1 This also means that we do not dwell upon contrary evidence the jury was entitled to disbelieve. See United States v. Hernandez, 433 F.3d 1328, 1333-34 (11th Cir. 2005). 3 Case: 12-12935 Date Filed: 09/03/2013 Page: 4 of 16
was going to “take the man hostage.” Apparently, Byrd volunteered; he got into
the Taurus, and, when K.E.N. returned, Byrd was waiting in the backseat with a
handgun pointed at K.E.N. Byrd held the gun to K.E.N’s head and told him to
drive or, according to K.E.N., “he’s going to blow my head off.” After K.E.N. had
driven about 50 yards and down an alley, Byrd directed him to get out, lie down on
the asphalt, and stay still while Byrd drove the Taurus away. As his car drove
away without him, K.E.N. recalled seeing a Jeep following it.
At trial, K.E.N. was unable to identify his assailant or anyone else involved.
He also testified that, to the best of his knowledge, there were at most three men
involved in the carjacking, the one in his backseat and two he saw when he pulled
his car into the liquor store lot. Moreover, he did not remember interacting with
anyone except for the man in his backseat. Holmes, on the other hand, testified
that, once the Taurus was parked in the alley and K.E.N. was on the ground, Starks
got out of the Jeep holding a handgun and ordered K.E.N. not to look up or “we’ll
come back and execute you . . . .” Then, Holmes and Flowers testified, Starks
ordered one of them to join Byrd in the Taurus, and when neither volunteered,
Starks waived his pistol at Flowers, who reluctantly got in K.E.N.’s car.
Not long after Byrd and Flowers drove away in the Taurus, however, it
broke down. Starks picked the two up in the Jeep, but said he still intended to get
some cash, even without a getaway car. When they passed a convenience store
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with the clerk outside of his station mopping the aisles, Starks identified his mark
and said it was “the perfect time to go in.” With the car parked beside the store,
Byrd got out with his handgun, and Starks gave him a pillowcase. Starks then
ordered Flowers out of the car and, when Flowers refused, Starks cocked his pistol
and told Flowers, “you don’t have an option, you’re going in the store.” So
Flowers took a knife Starks offered and entered the store with Byrd. Meanwhile,
Starks repositioned the Jeep to be ready to flee when they returned.
Dan Otieno, the clerk, testified that two men entered the store that night —
one tall and skinny, wearing a “bandana on his face,” and the other “short and
plump” with a ski mask. The tall, skinny man put a handgun to Otieno’s head,
ordered him to open the register, and then told him to get on the floor or, the man
said, “I’ll blow your head off.” Once the two men had emptied the register, they
ran from the convenience store and hopped in the Jeep. Otieno followed them
outside, where he saw a Jeep leaving the lot. At trial, Flowers identified himself as
the short man in the ski mask and Byrd as the tall man wearing a bandana.
At the close of the government’s case-in-chief, Starks moved for a judgment
of acquittal under Federal Rule of Criminal Procedure 29, which the court denied,
but he did not renew the motion after presenting his case. Byrd never moved for a
judgment of acquittal. The jury convicted Byrd and Starks on all charges.
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C. Sentencing
Prior to sentencing, the probation office prepared presentence investigation
reports (PSIs) for Starks and Byrd. Byrd’s PSI indicated that he had no prior
criminal history. His sentencing guidelines range on the carjacking count was 41
to 51 months’ imprisonment. Both of his other convictions carried minimum
statutory penalties to run consecutive both to one another and his carjacking
sentence. His conviction for brandishing a firearm in connection with the
carjacking subjected him to a 7-year mandatory minimum, and his conviction for
carrying and using a firearm in connection with the convenience-store robbery a
minimum of 25years. 18 U.S.C. § 924(c)(1)(A)(ii), (c)(1)(A)(i). Byrd did not
object, either to the PSI or to the sentence the court ultimately pronounced. The
district court varied downward on the carjacking count to 15 months, resulting in a
total sentence with the mandatory minimums of 399 months.
The PSI prepared in anticipation of Starks’s sentencing calculated that, on
the carjacking count, his guidelines range was 51-63 months in prison. His
conviction for brandishing a firearm in connection with the carjacking carried a
statutory mandatory minimum consecutive sentence of 7 years’ imprisonment.
Prior to sentencing, the government filed a memorandum asking the court to vary
upwards from Stark’s guidelines range, arguing the PSI under-represented his
criminal background and failed to fully account for his role in the carjacking and
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robbery. In support of these contentions, the government presented at sentencing
an FBI Agent who testified that Byrd and Holmes had given statements indicating
Starks had bragged about or attempted to involve them in several other armed
robberies both prior to and after May 11, 2011. And Flowers testified Starks told
him he had shot someone in 2009. Starks objected, but the district court found that
Starks’s guidelines range under-represented his criminal history and “that not only
[was Starks] present on May 11, 2011, but . . . orchestrated this event that brought
such problems on so many people.” After discussing at length how the 18 U.S.C.
§ 3553(a) factors affected the decision, the court varied upward to a sentence of 96
months’ imprisonment on the carjacking count, resulting in a total sentence of 180
months’ imprisonment.
D. Appeal
Byrd and Starks timely appealed both their convictions and sentences on
several grounds. Byrd contends the evidence was not sufficient to support his
convictions because, without the questionable testimony of Flowers and Holmes,
the man who carjacked K.E.N. and held the gun to Otieno’s head during the
robbery just as easily could have been one of the others. He also contends his
mandatory minimum sentences are unconstitutional. Starks argues the evidence
was insufficient to convict him of either the carjacking or brandishing a weapon
during it, especially considering that the victim never claimed to encounter anyone
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other than the man in his backseat. He also claims he should not have been tried
along with Byrd and that, in light of the disparity between the sentences he and
Byrd received for their carjacking convictions, his sentence is substantively
unreasonable. We address each contention in turn.
II.
Starks and Byrd both claim the evidence was insufficient to convict them.
Starks says the only evidence that he was present for the carjacking or brandished a
firearm during it was the testimony of Holmes and Flowers, which was self-serving
and inconsistent with that of K.E.N., who did not identify him. Byrd similarly
points out that neither K.E.N. nor Otieno identified him, and only Holmes and
Flowers, whose testimony is dubious and inconsistent, implicate him.
Byrd did not move for a judgment of acquittal based upon insufficient
evidence. And, although Starks made a proper motion at the close of the
government’s case, he did not renew the motion at the close of evidence.
Therefore, although we generally review challenges to the sufficiency of the
evidence de novo, both Byrd and Starks “must shoulder a somewhat heavier
burden: we will reverse . . . only where doing so is necessary to prevent a manifest
miscarriage of justice.” United States v. Fries, No. 11-15724, — F.3d — , 2013
WL 3991917, at *3 & n.5 (11th Cir. Aug. 6, 2013) (internal quotation marks
omitted). “This standard requires us to find either that the record is devoid of
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evidence of an essential element of the crime or that the evidence on a key element
of the offense is so tenuous that a conviction would be shocking.” Id. at *3
(internal quotation marks omitted).
We cannot conclude that standard is satisfied with respect to either
defendant’s convictions. Holmes and Flowers both testified that Starks chose
K.E.N.’s car to steal, that Byrd was the man K.E.N. testified made him drive his
car from the liquor store lot into the alley with a gun to his head, and that Starks
threatened Flowers with a pistol to force him to join Byrd in driving K.E.N.’s
Taurus away from the scene. And both testified Byrd was the man who robbed the
convenience store at gunpoint.
As Starks and Byrd point out, there were certainly reasons the jury could
have disbelieved that testimony. Both witnesses’ testimony at trial diverged from
statements they made to police on the night of the crimes and was inconsistent with
the victims’ testimony. Both witnesses got wrong whether Starks had disposed of
clothing used in the commission of the crimes. Some extraneous details in
Holmes’s testimony diverged from security camera videos and photos presented at
trial, and he has a criminal record. And Flowers conceded he was cooperating in
hopes of a lenient sentence for his part in the debacle.
But the jury apparently did believe their testimony despite all of this, and
they were entitled to do so. We may only reject a jury’s decision to credit
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testimony where it is “incredible as a matter of law,” that is, “if it relates to facts
the witness could not have possibly observed or events that could not have
occurred under the laws of nature.” United States v. Flores, 572 F.3d 1254, 1263
(11th Cir. 2009) (internal quotation marks omitted). We may not reject a jury’s
apparent reliance on a witness simply because there are discrepancies between his
testimony and his prior statements to police. See United States v. Calderon, 127
F.3d 1314, 1324-25 (11th Cir. 1997) (holding jury was free to rely upon testimony
of witness who admitted prior testimony in related case was untruthful; “the fact
that the witness has consistently lied in the past . . . does not make his testimony
incredible” (alteration and internal quotation marks omitted)). Any inconsistences
Starks and Byrd point to “are classic jury arguments . . . , not a reason to disregard
the jury’s determination . . . .” United States v. McGuire, 706 F.3d 1333, 1336
(11th Cir.), cert. denied, 133 S. Ct. 1744 (2013). Moreover, “the uncorroborated
testimony of an accomplice is sufficient to support a conviction if it is not on its
face incredible or otherwise insubstantial,” even if the accomplice has a “prior
criminal history” and admits to testifying in exchange for beneficial prosecutorial
treatment. United States v. Milkintas, 470 F.3d 1339, 1344 (11th Cir. 2006). And
even if Holmes’s and Flowers’s testimony differed from that of the victims, asking
that we reverse the convictions for that reason “represents nothing more than an
invitation to this Court to revisit the credibility determinations of the jury,” which
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we may not do. United States v. Thompson, 422 F.3d 1285, 1291-92 (11th Cir.
2005). “It is well-established that credibility determinations are the exclusive
province of the jury.” Id. (internal quotation marks and alteration omitted).
Although the testimony of Holmes and Flowers may be, as Starks and Byrd
contend, suspect, it was not incredible as a matter of law. And neither Byrd nor
Starks argues, nor could they, that they may surmount their heavy burdens on
appeal if the jury could properly have credited that testimony. There is no manifest
miscarriage of justice, and we therefore affirm Starks’s and Byrd’s convictions.
III.
Byrd argues that his two statutory mandatory minimum sentences are
unconstitutional, both as cruel and unusual punishment prohibited by the Eighth
Amendment and as a violation of the separation-of-powers doctrine. Because Byrd
raised no such objection in the district court, we review only for plain error.
United States v. Belfast, 611 F.3d 783, 815 (11th Cir. 2010). We share the district
court’s concern that Byrd’s sentence, due to the mandatory minimums he faced,
seems “out of proportion to this particular crime in this particular situation and for
this particular defendant,” a first-time offender who made a grave mistake falling
in with the wrong crowd but who was repentant and otherwise a promising student.
But “[a]n error cannot be plain if such error is not obvious or clear under current
law.” United States v. Hernandez-Gonzalez, 318 F.3d 1299, 1302 (11th Cir. 2003).
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And “where neither the Supreme Court nor this Court has ever resolved an issue,
and other circuits are split on it, there can be no plain error . . . .” United States v.
Gerrow, 232 F.3d 831, 835 (11th Cir. 2000) (internal quotation marks omitted).
As Byrd forthrightly concedes, we have held the mandatory minimums in
§ 924(c) constitutional under the Due Process Clause. United States v. Hamblin,
911 F.2d 551, 555 (11th Cir. 1990); see also United States v. Castaing-Sosa, 530
F.3d 1358, 1362 (11th Cir. 2008) (“[D]istrict court[s] remain[] bound by statutes
designating mandatory minimum sentences even after the remedial holding of
United States v. Booker, 543 U.S. 220 . . . (2005).”). And other circuits that have
squarely addressed Eighth Amendment challenges like Byrd’s have rejected them.
E.g., United States v. Major, 676 F.3d 803, 812 (9th Cir.) (rejecting identical
challenge to nearly 750-year sentence imposed under § 924(c)’s mandatory
minimum provision), cert. denied 133 S. Ct. 280 (2012); United States v. Clark,
634 F.3d 874, 877-78 (6th Cir. 2011) (rejecting Eighth Amendment challenge to §
924(c) consecutive mandatory minimums that resulted in nearly 148-year
sentence). Moreover, as Byrd acknowledges, binding precedent squarely
forecloses his argument that the mandatory minimums violate the separation of
powers by depriving the sentencing judge of discretion. See United States v.
Paige, 604 F.3d 1268, 1274 (11th Cir. 2010). Accordingly, Byrd cannot show his
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sentence was unconstitutional under the plain-error standard we must apply to his
claim.
IV.
Starks contends the district court erred in denying his “Motion to Sever Due
to Bruton Issue.” Despite Starks’s assertion in his brief, however, no Bruton issue
could possibly arise in this case because no out-of-court confession by a co-
defendant was introduced into evidence. See Bruton, 391 U.S. at 124-26. Instead,
Starks claims he should not have been tried with Byrd because he was not charged
in connection with the robbery but the jury may have been confused or considered
testimony about his involvement in the robbery in convicting him.
Because this argument is new on appeal, we review only for plain error. See
Belfast, 611 F.3d at 815. “[A]t least where the explicit language of a statute or rule
does not specifically resolve an issue, there can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving it.” United
States v. Lejarde–Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Defendants
indicted together are usually tried together, and a district court is only required to
sever their trials in “exceptional circumstances” where compelling prejudice is
inevitable and “jury instructions or some other remedy short of severance will not
work.” United States v. Lopez, 649 F.3d 1222, 1234 (11th Cir. 2011). “Severance
is justified . . . only if the prejudice flowing from a joint trial is clearly beyond the
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curative powers of [cautionary] instructions.” United States v. Baker, 432 F.3d
1189, 1237 (11th Cir. 2005). “To succeed on appeal the Defendant must carry the
heavy burden of demonstrating the lack of a fair trial due to actual, compelling
prejudice.” United States v. Chavez, 584 F.3d 1354, 1360 (11th Cir. 2009).
The district court instructed the jury that “the case of each defendant should
be considered separately and individually” and “each defendant is on trial only for
the specific offenses alleged against him in the indictment.” No case, rule, or
statute Starks could cite would render it plain that any actual, compelling prejudice
of his joint trial with Byrd was clearly beyond the curative power of these
instructions. He therefore cannot show the court plainly erred in declining to sever
his trial from Byrd’s.
V.
Finally, Starks also contends his sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence for an abuse of discretion and
will reverse “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 [18 U.S.C.]
§ 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, 612 F.3d 1160,
1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
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Starks has not shown his sentence was substantively unreasonable.
Although his carjacking sentence exceeded Byrd’s and his guidelines range, the
district court thoroughly explained it was departing upward to avoid unwarranted
sentencing disparities as much as was feasible because Starks’s conduct was more
egregious. See 18 U.S.C. § 353(a)(6). Starks, the court concluded, was the
group’s ringleader who initiated conversation about a robbery, decided they needed
a getaway car, selected K.E.N.’s car, and chose which convenience store to rob.
And he coerced Flowers into participating at gunpoint. Further, in light of the
testimony at his sentencing, the court found the guidelines range underrepresented
Starks’s past criminal activity. See id. § 3553(a)(1). After thorough consideration,
the court decided the sentencing factors, especially the nature and characteristics of
Starks’s participation and the need to protect the public from the unrepentant
Starks’s future crimes, made an above-guidelines sentence necessary. See id.
§ 3553(a)(1), (2). We find no abuse of discretion in that conclusion.
VI.
After careful review of the record, we affirm the convictions and sentences
of Starks and Byrd. The evidence was sufficient for the jury to convict both of
them on all counts. There was no plain error in sentencing Byrd to the statutory
mandatory minimums for his convictions. And Starks has not shown the district
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court plainly erred in failing to sever his trial from Byrd’s or abused its discretion
in fashioning his sentence.
AFFIRMED.