United States v. Daniel McKinley
732 F.3d 1291
| 11th Cir. | 2013Background
- On Sept. 23, 2011, a masked gunman robbed a Chevron convenience store in Lauderdale Lakes, FL; the manager testified the robber pointed a gun at him and ordered him to open doors, and an outside witness saw the robber waving a gun.
- Police collected blood and a fingerprint from the cashier’s booth; DNA and fingerprint testing matched McKinley to the evidence.
- A federal jury convicted McKinley of interference with commerce by violence (Hobbs Act robbery) (Count 1) and using/carrying a firearm during and in relation to a crime of violence (Count 2); the indictment cited § 924(c)(1)(A)(ii) (brandishing).
- The PSI assigned offense level 24 and criminal history category II (three points), producing a guidelines range of 57–71 months for Count 1; § 924(c) produced a seven-year mandatory minimum for Count 2 to run consecutive.
- At sentencing the district court (1) found McKinley brandished the firearm and imposed the seven-year § 924(c) minimum, (2) applied a two-level § 3C1.1 obstruction enhancement for perjured testimony, and (3) imposed an upward departure/variance on Count 1 to 125 months based on unscored prior convictions and recidivism risk; total sentence 209 months.
Issues
| Issue | McKinley’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether imposition of seven-year § 924(c) minimum based on judge’s finding of brandishing violated Sixth Amendment (Apprendi/Alleyne) | District court increased mandatory minimum on a fact (brandishing) not found by jury; Sixth Amendment violated | At sentencing time Harris controlled (judge could find brandishing); after Alleyne, any § 924(c) brandishing fact must be jury-found, but preservation issues apply | Affirmed. Court applied plain-error framework, found error (assuming it existed) but evidence of brandishing was overwhelming so fourth prong failed; upheld 84-month § 924(c) sentence |
| Whether § 3C1.1 two-level obstruction enhancement for perjury was improper | Testimony denying involvement was protected right to testify; no materially false testimony | Testimony was willfully false and contradicted by DNA/fingerprint evidence; perjury supports § 3C1.1 | Affirmed. District court did not clearly err in finding perjury and applying the enhancement |
| Whether upward departure/variance on Count 1 was unreasonable | Upward sentence overrepresented by counting stale convictions; challenged reasonableness | District court permissibly found criminal-history category II understated seriousness and risk; alternative variance appropriate under § 3553(a) | Affirmed. Departure under § 4A1.3 or, alternatively, an upward variance was within discretion; sentence reasonable and below statutory maximum |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase mandatory minimum are elements for jury to decide)
- Harris v. United States, 536 U.S. 545 (2002) (pre-Alleyne holding that judge could find brandishing for mandatory minimum)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact increasing penalty beyond statutory maximum must be submitted to jury)
- Cotton v. United States, 535 U.S. 625 (2002) (plain-error standard for unpreserved sentencing claims)
- Dunnigan v. United States, 507 U.S. 87 (1993) (defendant’s right to testify does not include right to commit perjury; perjury can support obstruction enhancement)
- Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion review for sentencing, including variance)