United States v. Sherond Duron King
751 F.3d 1268
11th Cir.2014Background
- In July 2011 Sherond Duron King, Jr. and Graylin Kelly committed four armed robberies (My Dream Coin Laundry, MetroPCS, Subway, BP gas station); King was identified in photo arrays and surveillance captured the crimes. Kelly pled guilty; King proceeded to trial.
- A jury convicted King of conspiracy and four substantive robberies (18 U.S.C. § 1951) and four corresponding § 924(c) firearm counts for using/brandishing a firearm in furtherance of each robbery.
- The firearms were not recovered; eyewitnesses (and surveillance images/video) testified they saw King point a gun during each robbery.
- King moved to suppress out-of-court identifications (photographic lineups) and requested a cross-race identification jury instruction; both were denied.
- At sentencing the court applied mandatory minimums under § 924(c): a 7-year minimum for brandishing on one count and consecutive 25-year minimums for three other § 924(c) convictions, resulting in a total sentence of 1,062 months.
- King appealed raising six issues: sufficiency of firearm proof, denial of cross-race jury instruction, suggestive photo array, cumulative error, Alleyne/Apprendi challenges to mandatory minimums, and substantive unreasonableness of sentence.
Issues
| Issue | Plaintiff's Argument (King) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of evidence that the weapon was a "firearm" under 18 U.S.C. § 921(a)(3) | Lay-witness testimony was insufficient because the gun was not recovered or introduced and no expert established it expelled a projectile by explosive action | Lay testimony plus surveillance/stills can prove a firearm under circuit precedent; government need not produce the weapon or an expert | Affirmed — testimony and video/stills were sufficient under United States v. Woodruff to prove a § 921(a)(3) firearm beyond a reasonable doubt |
| Cross-race identification jury instruction | Requested instruction that cross-racial IDs are less reliable; required because King is Black and many ID witnesses were not | No evidence at trial about race-related identification difficulty; general identification instruction sufficiently covered reliability factors | Affirmed — district court did not abuse discretion; no evidentiary basis for special instruction and pattern instruction adequately covered identification reliability |
| Suggestive photographic lineup (Charles’s ID) | Photo array was unduly suggestive because King’s booking photo showed him in a white tank top like the robber | District court found lineup not unduly suggestive and the identification reliable | Affirmed — appellant abandoned the reliability argument by failing to challenge it; court need not reach suggestiveness beyond that point |
| Cumulative error | Even if individual errors non-reversible, their aggregate denied a fair trial | No reversible errors identified; therefore no cumulative prejudice | Affirmed — no cumulative-error basis because no significant errors found |
| Alleyne challenge to brandishing and "second or subsequent" for § 924(c) mandatory minimums | Brandishing (and second-or-subsequent status) are elements that must be charged and found by the jury under Alleyne; sentences should be vacated/remanded | Alleyne requires jury findings for facts that increase mandatory minimums, but Almendarez-Torres still permits judicial factfinding of prior convictions/second-or-subsequent status; Government concedes Alleyne error as to brandishing count but argues harmlessness | Partially affirmed — Alleyne error as to brandishing conceded but harmless beyond a reasonable doubt (surveillance and eyewitness proof clearly established brandishing); Almendarez-Torres governs second-or-subsequent enhancement so no plain error on consecutive 25-year terms |
| Substantive reasonableness of sentence (1,062 months) | Sentence is excessive given no physical injuries, King's characteristics, and disparity with co-defendant Kelly | District court considered § 3553(a) factors, offender’s lack of remorse and recidivism risk; King not similarly situated to Kelly (plea vs. trial and multiple § 924(c) counts) | Affirmed — no procedural error and sentence was reasonable under deferential review of § 3553(a) factors |
Key Cases Cited
- United States v. Woodruff, 296 F.3d 1041 (11th Cir. 2002) (lay witness testimony and other evidence can establish a § 921(a)(3) firearm without producing the weapon or expert)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase a mandatory minimum are elements that must be found by a jury)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact increasing penalty beyond statutory maximum must be submitted to jury)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior convictions may be found by the court for sentence enhancement and need not be alleged in the indictment)
- Perry v. New Hampshire, 132 S. Ct. 716 (2012) (due process exclusion of identifications requires suggestive police procedures creating a very substantial likelihood of misidentification)
- United States v. Nealy, 232 F.3d 825 (11th Cir. 2000) (Apprendi errors are subject to harmless-error review)
- Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (issues not properly argued on appeal are deemed abandoned)