United States v. King

• Citation: 751 F.3d 1268
• Decision Date: 09 June 2014
• Docket Number: No. 12–16268.,12–16268.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sherond Duron KING, a.k.a. Ron, a.k.a. Shearon King, a.k.a. Shearond King, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

751 F.3d 1268

UNITED STATES of America, Plaintiff–Appellee,

v.Sherond Duron KING, a.k.a. Ron, a.k.a. Shearon King, a.k.a. Shearond King, Defendant–Appellant.

No. 12–16268.

United States Court of Appeals,Eleventh Circuit.

June 9, 2014.

Jamie Galvin, Assistant U.S. Attorney, Kathleen Mary Salyer, Anne Ruth Schultz, Eloisa Delgado Fernandez, Wifredo A. Ferrer, Kurt K. Lunkenheimer, Seth Michael Schlessinger, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Michael Caruso, Federal Public Defender, Bernardo Lopez, Anthony John Natale, Abigail Emily Becker, Federal Public Defender's office, Miami, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:12–cr–20367–FAM–2.

Before HULL, BLACK and FARRIS,^* Circuit Judges.

PER CURIAM:

Sherond Duron King, Jr., appeals his convictions and sentences arising from a string of armed robberies he committed in July 2011. Specifically, a jury convicted King of (1) conspiring to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951(a); (2) obstructing interstate commerce by robbing My Dream Coin Laundry, in violation of 18 U.S.C. § 1951(a); (3) using, carrying, or possessing a firearm in furtherance of the My Dream Coin Laundry robbery, in violation of 18 U.S.C. § 924(c)(1)(A); (4) obstructing interstate commerce by robbing a MetroPCS store, in violation of 18 U.S.C. § 1951(a); (5) using, carrying, or possessing a firearm in furtherance of the MetroPCS robbery, in violation of 18 U.S.C. § 924(c)(1)(A); (6) obstructing interstate commerce by robbing a Subway store, in violation of 18 U.S.C. § 1951(a); (7) using, carrying, or possessing a firearm in furtherance of the Subway robbery, in violation of 18 U.S.C. § 924(c)(1)(A); (8) obstructing interstate commerce by robbing a BP gas station, in violation of 18 U.S.C. § 1951; and (9) using, carrying, or possessing a firearm in furtherance of the BP robbery, in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentencedKing to a total of 1,062 months' imprisonment, and he now pursues numerous issues on appeal. We conclude the arguments King raises on appeal fail, and we therefore affirm his convictions and sentences.

I. BACKGROUND

On July 9, 2011, King and another man, Graylin Kelly, robbed My Dream Coin Laundry in Miami Shores, Florida.¹ According to Nickelson Charles, an employee of the laundromat who was working that night, King was wearing a white tank top and had dreadlocks while Kelly was wearing a jacket. The two men entered the store and walked around the laundromat for 10 to 20 minutes. Eventually, one of the men asked Charles to make change and, once he opened the cash register, King pointed a gun at Charles's face and demanded the money from the register. After King again demanded that Charles turn over the money and threatened to shoot him, Charles opened the cash register and gave King all of the money in the drawer.

Several days after the robbery, Charles identified King as the robber from a photographic lineup. Charles was unable to identify Kelly, but stated he could not forget King's face. Detective Kerry Turner with the Miami Shores Police Department created the lineup by using six photographs, including a picture of King from his recent booking following his arrest. In the array, King is shown wearing a white tank top. Detective Turner testified that he chose not to use King's driver's license photograph because the booking photograph was more recent. In selecting the photographs for the array, Detective Turner looked for individuals with similar facial features and hairstyles.

On July 12, 2011, three days after the My Dream Coin Laundry robbery, King and Kelly robbed a MetroPCS store. After the men entered the store, King approached the store manager. King pulled out a gun, pointed it at the manager, and told him to “open the safe.” The manager put the cash register box on the counter and stared at King. In response, King pointed the gun at the manager and said “don't look at me, don't look at me.” King and Kelly then took the money and ran out of the store.

Subsequently, a police officer showed Judith Brea, an employee who was present in the store at the time of the robbery, a photographic lineup. Brea immediately identified King as one of the robbers. The officer also showed Jose Enrique Lantigua, the store manager, a photographic lineup from which he identified King as the robber.

Later on July 12, 2011—the same day as the MetroPCS robbery—King and Kelly robbed a Subway store. The men entered the store and looked around. While Arthur Joseph, an employee at the Subway, waited for King and Kelly to decide what to order, another Subway employee, Treniese Stubbs, was working at the cash register. When Stubbs opened the cash register, King suddenly pulled out a gun, pointed it at her head, and demanded the money from the register. After taking the money, the men ran out of the store. Several days after the robbery, a police officer showed Joseph a photographic lineup from which Joseph identified King as the man who pointed a gun at Stubbs and demanded the money. An officer also showed Stubbs a photographic lineup from which she identified King as the man who pointed a gun at her and took the money from the cash register.

On July 13, 2011, the day after the Subway and MetroPCS robberies, King and Kelly robbed a BP gas station. After entering the store at the gas station, King waited in line at the cash register until he reached the front of the line, at which point he aimed a gun at Wilmer Pineda, the employee working the cash register, and demanded the money from the register. King took the money from the cash register and he and Kelly left the store. Approximately one week after the robbery, Pineda identified King from a photographic lineup as the man who took the money from the register. Fanor Saravia, a man who maintained the landscaping at the BP station and who was present inside the store during the robbery, also identified King from a photographic lineup as one of the robbers.

A federal grand jury returned an indictment charging King with conspiring to rob, as well as actually robbing, the My Dream Coin Laundry, the MetroPCS store, the Subway store, and the BP gas station. The indictment also charged King with knowingly using, carrying, or possessing a firearm in furtherance of each of the robberies.

Prior to trial, King filed a motion to suppress the witnesses' out-of-court identifications of him and to prohibit the witnesses from identifying him in court. King argued the procedures used during the photographic lineups were unduly suggestive and that the witnesses' identifications were not reliable. Following an evidentiary hearing, the district court denied the motion to suppress.²

King's case proceeded to trial. After the Government rested its case-in-chief, King moved for a judgment of acquittal on the firearms counts, arguing there was insufficient evidence the gun he used was real and met the statutory definition of a firearm. The district court denied the motion, and, following the close of the defense case, King renewed his motion for a judgment of acquittal. The district court again denied the motion, and the jury found King guilty on all counts.

At the sentencing hearing, using information from the presentence investigation report, the district court calculated a base offense level of 24 for King's conspiracy and robbery convictions and determined King had a criminal history category of III, yielding a guidelines range of 63 to 78 months' imprisonment. King's guidelines range on the firearms convictions was a mandatory 984–month sentence, composed of a consecutive seven-year sentence on Count Three for brandishing a firearm, and consecutive terms of 25 years' imprisonment for each of his three other firearms convictions (Counts Five, Seven, and Nine). King's resulting guidelines range was 1,047 to 1,062 months' imprisonment.

King objected to the seven-year mandatory minimum sentence for brandishing a firearm, arguing that based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and under the Fifth and Sixth Amendments, the element of “brandishing” had to be charged in the indictment and found by the jury beyond a reasonable doubt. King recognized that, at the time, his argument was foreclosed by Supreme Court precedent, but he nonetheless raised the objection to preserve the issue in light of the Supreme Court's then-recent grant of certiorari in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 420, 184 L.Ed.2d 252 (2012).

The district court sentenced King to a total sentence of 1,062 months' imprisonment. King's total sentence was comprised of concurrent terms of 78 months' imprisonment on the conspiracy and substantive robbery counts (Counts One, Two, Four, Six, and Eight); a consecutive term of 84 months' imprisonment on his first firearm count (Count Three); and 300 months' imprisonment on each of his three other firearms counts (Counts Five, Seven, and Nine), which were imposed to run consecutively to his other sentences and to each other. King objected to the reasonableness of the sentence and this appeal followed.

II. ANALYSIS

King raises six issues on appeal. He argues that (1) the Government did not present any evidence the gun he used during the four robberies met the legal definition of a firearm and his § 924(c) convictions should therefore be vacated; (2) the district court abused its discretion by refusing to give a jury instruction regarding cross-race identifications; (3) the district court should have excluded Charles's identification of King because the photo array used to obtain the identification was unduly suggestive; (4) the cumulative effect of the district court's purported errors requires reversal; (5) the district court erred by imposing mandatory minimum sentences on his firearm offenses...