             Case: 14-10390    Date Filed: 12/02/2015   Page: 1 of 15


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-10390
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:13-cr-20619-KMM-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ANTHONY WILLARD JOHNSON,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (December 2, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

      Anthony Johnson appeals his conviction and 235-month sentence for

possession of a firearm and ammunition by a convicted felon, in violation of 18
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U.S.C. §§ 922(g)(1), 924(e). On appeal, Johnson raises several arguments. First,

Johnson asserts that the district court erred in denying his request for a continuance

to retain new counsel on the morning of trial. Second, Johnson contends that the

district court erred in forcing him to stand trial in identifiable prison clothes.

Third, Johnson argues that the district court abused its discretion when it denied his

motion in limine to exclude evidence regarding a shooting that occurred on the

night of his arrest. Fourth, Johnson asserts that his conviction should be reversed

pursuant to the cumulative error doctrine. Fifth, Johnson contends that he was

erroneously sentenced under the Armed Career Criminal Act (“ACCA”) because it

violates the Sixth Amendment, is unconstitutionally vague, and because the district

court erred in determining that his prior felonies were committed on different

occasions. Finally, Johnson argues that his sentence was both procedurally and

substantively unreasonable.

                                            I


      We review the denial of a request for a continuance for an abuse of

discretion. United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005). The

Sixth Amendment right to have the assistance of counsel encompasses the right of

a criminal defendant who has the means to retain counsel to choose who will

represent him. United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct.

2557, 2561, 165 L.Ed.2d 409 (2006). The Supreme Court has held that deprivation

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of the right to counsel of choice is a structural error, and a defendant need not show

prejudice or ineffectiveness to prove a violation of this right. Id. at 148, 150-51,

126 S.Ct. at 2563-65.

      Nevertheless, the right to counsel of choice is not absolute, and trial courts

have wide latitude to balance the right to counsel of choice against the needs of

fairness and the demands of the court’s calendar. Id. at 152, 126 S.Ct. at 2565-66.

Accordingly, not every denial of a request for a continuance will violate the right

to counsel of choice. See Baker, 432 F.3d at 1248 (citing Ungar v. Sarafite, 376

U.S. 575, 589-91, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964)). Thus, a

defendant is entitled only to a fair or reasonable opportunity to select the attorney

of their choice. Id. In determining whether the denial of a continuance violated a

defendant’s opportunity to choose counsel, we consider several factors including

the length of the requested delay, whether alternative counsel is available and

prepared for trial, the inconvenience of a delay to those involved in the trial, and

whether the reason for the request is legitimate. Id.

      Here, the district court did not abuse its discretion in denying Johnson’s last-

minute motion for a continuance to retain new counsel. The delay Johnson

requested was not insignificant, and would have inconvenienced the court, the

witnesses, and the citizens called for jury duty. Furthermore, appointed counsel

was present and prepared to proceed to trial. Accordingly, we affirm.


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                                          II

      It is a Fourteenth Amendment violation to compel a criminal defendant to

stand trial before a jury in identifiable prison garb. United States v. Graham, 643

F.3d 885, 895 (11th Cir. 2011). If such a constitutional error has occurred, we

review to determine whether that error is harmless beyond a reasonable doubt. Id.

We have stated that overwhelming evidence of a defendant’s guilt renders the error

occasioned by a defendant’s appearance in prison clothes at trial harmless beyond

a reasonable doubt. United States v. Harris, 703 F.2d 508, 512 (11th Cir. 1983).

      It is undisputed that the district court erred when it failed to briefly delay the

trial so that Johnson might change into civilian clothing. Nevertheless, we hold

that the evidence of Johnson’s guilt presented at trial was overwhelming, and that

the district court’s error was therefore harmless beyond a reasonable doubt.

Accordingly, we affirm.

                                          III

      We review a district court’s rejection of a defendant’s Rule 403 challenge

for an abuse of discretion. United States v. Jernigan, 341 F.3d 1273, 1284 (11th

Cir. 2003). Federal Rule of Evidence 403 permits district courts to exclude

relevant evidence if its probative value is substantially outweighed by a risk of

unfair prejudice. Fed.R.Evid. 403. In a criminal trial, relevant evidence is

inherently prejudicial, thus, Rule 403 permits exclusion only when unfair prejudice


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substantially outweighs probative value. United States v. Edouard, 485 F.3d 1324,

1346 (11th Cir. 2007). In reviewing issues under Rule 403, we view the evidence

in the light most favorable to its admission. Jernigan, 341 F.3d at 1284.

Therefore, we will find an abuse of discretion only where the decision to admit

evidence over a Rule 403 challenge is unsupportable even when viewed in the light

most supportive of admission. Id. at 1285.

      Federal Rule of Evidence 404(b) prohibits the admission of evidence of

other crimes to prove a defendant’s character. Fed.R.Evid. 404(b). However,

evidence of criminal activity other than the charged offense is not inadmissible

under Rule 404(b) where it is necessary to complete the story of the crime or

inextricably intertwined with evidence regarding the charged offense. Edouard,

485 F.3d at 1344. Thus, evidence pertaining to the context of the crime is properly

admitted if it is linked in time and circumstances with the charged offense or forms

an integral and natural part of an account of the crime. Id. Additionally, the

district court can diminish the prejudicial impact of such evidence by instructing

the jury that the evidence was to be considered for a limited purpose. See United

States v. Cardenas, 895 F.2d 1338, 1344 (11th Cir. 1990).

      The decision whether to impose sanctions for discovery violations lies

within the district court’s discretion, and we review such rulings for an abuse of

discretion. United States v. Yates, 733 F.3d 1059, 1063, 1065 (11th Cir. 2013),


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cert. granted in part, 134 S.Ct. 1935 (2014). Accordingly, we will reverse a

defendant’s conviction based on a violation of Federal Rule of Criminal Procedure

16 only if that violation prejudiced the defendant’s substantial rights. United

States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999). The purpose of Rule 16

is to protect the defendant’s right to a fair trial, thus, a defendant’s substantial

rights are affected when the defendant is unduly surprised and lacks an adequate

opportunity to prepare a defense. United States v. Camargo-Vergara, 57 F.3d 993,

998-99 (11th Cir. 1995).

      Viewing the evidence in the light most favorable to admission, the district

court did not abuse its discretion by admitting the 911 call and evidence regarding

the shooting over Johnson’s Rule 403 objection, because they provided context for

the jury and the district court diminished their prejudicial impact by providing

limiting instructions. Likewise, the district court did not abuse its discretion in

declining to impose sanctions for the government’s Rule 16 violation because

Johnson’s substantial rights were not affected. As such, we affirm.

                                           IV

      Under the cumulative error doctrine, an aggregation of nonreversible errors

can result in the denial of a defendant’s right to a fair trial, warranting reversal.

United States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014). However, where

there is no error or only a single error, there can be no cumulative error and


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reversal is not warranted. Id. at 1277-78. In addressing a claim of cumulative

error, we examine the trial as a whole to determine whether the defendant was

afforded a fair trial. United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009).

      The only error that Johnson has demonstrated is the district court’s failure to

provide him the opportunity to change into civilian clothing before standing trial.

As discussed above, this error was harmless and the remaining trial errors alleged

by Johnson lack merit. Accordingly, because Johnson has only demonstrated a

single error, the cumulative error doctrine does not apply and we affirm.

                                            V

      We review constitutional challenges to a sentence raised before the district

court de novo. United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir.), cert.

denied, 134 S.Ct. 311 (2013). However, issues raised for the first time on appeal

are reviewed only for plain error. United States v. Day, 465 F.3d 1262, 1264 (11th

Cir. 2006). Under the plain error standard, the defendant must demonstrate four

factors: (1) there was an error, (2) the error is plain, (3) the error affects substantial

rights, and, if the foregoing three factors are met, (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. United States v.

Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).

      An error is plain if it is clear from either the plain meaning of a statute or

constitutional provision, or from a holding of the Supreme Court or this Court.


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United States v. Pantle, 637 F.3d 1172, 1174-75 (11th Cir. 2011). An error affects

substantial rights when it is prejudicial to the defendant, meaning the defendant

must show that the error affected the outcome of the district court proceedings.

Olano, 507 U.S. at 734, 113 S.Ct. at 1778. Finally, an error seriously affects the

fairness, integrity, and public reputation of the judicial proceedings if failure to

correct the error would result in a miscarriage of justice. Id. at 736, 113 S.Ct. at

1779.

        Section 922(g) of Title 18 of the United States Code prohibits the knowing

possession of a firearm and ammunition by a convicted felon, 18 U.S.C.

§ 922(g)(1), which ordinarily carries a maximum penalty of 10 years’

imprisonment, Id. § 924(a)(2). The ACCA, however, provides that a person who

violates § 922(g) and has three previous convictions for a violent felony,

committed on different occasions from one another, is subject to a minimum term

of 15 years’ imprisonment. Id. § 924(e)(1). Crimes are committed on different

occasions for purposes of the statute when they arise out of separate and distinct

criminal episodes. United States v. Sneed, 600 F.3d 1326, 1329-30 (11th Cir.

2010). Even small distinctions in time and place are sufficient to separate criminal

episodes from one another; thus, offenses will be distinct as long as some temporal

break occurs between them. Id. at 1330.

        In Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161


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L.Ed.2d 205 (2005), the Supreme Court held that in determining whether a prior

conviction qualifies as an ACCA predicate offense, sentencing courts may only

consider a limited set of documents. The documents on which a court may rely

under Shepard are the charging document, a written plea agreement, the transcript

of the plea colloquy, any explicit factual finding by the trial judge to which the

defendant consented, or some comparable judicial record of this information. Id. at

16, 26, 125 S.Ct. at 1257, 1263. In addition to Shepard documents, we have held

that sentencing courts may rely on undisputed facts contained in a presentence

investigation report (“PSI”). United States v. Ramirez-Flores, 743 F.3d 816, 820

(11th Cir. 2014). We have also held that sentencing courts are limited to Shepard

documents in determining whether prior felonies were committed on different

occasions. Sneed, 600 F.3d at 1332-33.

      Johnson argues for the first time on appeal that, after Descamps v. United

States, 570 U.S. __, 133 S.Ct. 2276, 2284-85, 186 L.Ed.2d 438 (2013), the sole

purpose of an inquiry under Shepard documents is to discern the elements of the

prior offense of which a defendant was convicted, and any “factual” inquiry

pursuant to Shepard is limited to facts constituting the elements of the prior

offense. Because the date and time of the prior offense are not elements, Johnson

argues that Shepard documents cannot be used to prove them. We cannot

conclude that the district court committed plain error in this regard. Descamps


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itself did not address how courts should determine whether prior felonies were

committed on different occasions. Prior to Descamps, this court has consistently

held that district courts may determine whether prior crimes were committed on

separate dates, so long as they limit themselves to Shepard-approved documents,

United States v. Weeks, 711 F.3d 1255, 1259 (2013), and post-Descamps Weeks

itself implicitly so held although it did not address the precise argument now raised

by Johnson.

      Again for the first time, Johnson argues in the alternative, even if use of

Shepard documents is permissible as proof of date and time, the district court

nevertheless erred in relying on the PSI’s statement of facts indicating that at least

three of the qualifying convictions occurred on different dates. Johnson cites as

error the fact that the PSI itself relied on allegedly impermissible Shepard

documents. Again, we cannot conclude that plain error has occurred. Our cases

prior to Descamps consistently held that district courts could consider for ACCA

enhancement purposes facts stated in the PSI to which a defendant did not object.

Such facts were deemed admitted. Ramirez-Flores, 743 F.3d at 823 (“we have

held that a sentencing court applying the modified categorical approach may

consider undisputed facts contained in the PSI.”). Descamps did not address this

issue. And, post-Descamps this Court held that a district court properly relied on

unobjected-to facts, although not addressing the precise issue now raised by


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Johnson. Id. at 823-24.

      In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140

L.Ed.2d 350 (1998), the Supreme Court held that the government may use the fact

of a prior conviction to enhance a defendant’s sentence without charging that prior

conviction in the indictment or proving it to a jury beyond a reasonable doubt.

United States v. Beckles, 565 F.3d 832, 846 (11th Cir. 2009). Subsequently, in

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d

435 (2000), the Supreme Court held that any fact, other than the fact of a prior

conviction, that increases the penalty for a crime beyond the statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt. Although the

Court has expressed doubts about its holding in Almendarez-Torres, it has declined

to overrule that decision. Id.; see also Alleyne v. United States, 570 U.S. __, 133

S.Ct. 2151, 2160 n.1, 186 L.Ed.2d 314 (2013). We have consistently held that

Almendarez-Torres remains binding law and that a district court may properly rely

on a defendant’s prior convictions to enhance his sentence. Beckles, 565 F.3d at

846; see also, e.g., United States v. King, 751 F.3d 1268, 1280 (11th Cir. 2014).

Because Almendarez-Torres remains good law, we reject Johnson’s argument that

a jury must find that he had the three predicate felonies.

      A penal statute is void for vagueness if it is not sufficiently definite such that

ordinary people cannot understand what conduct is prohibited and it encourages


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arbitrary and discriminatory enforcement. Skilling v. United States, 561 U.S. 358,

402-03, 130 S.Ct. 2896, 2927-28, 177 L.Ed.2d 619 (2010). The residual clause of

ACCA provides that a crime is a violent felony if it “otherwise involves conduct

that presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B). The Supreme Court has recently held that the residual clause is

void for vagueness. Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551

(2015). The Court did not invalidate § 924(e)’s elements clause, which defines a

violent felony as one that “has as an element the use, attempted use, or threatened

use of physical force against the person of another.” United States v. Hill, 799

F.3d 1318, 1322 (11th Cir. 2015).

       Johnson’s void-for-vagueness challenge is foreclosed by the fact that his

predicate felonies all fall under the elements clause. Each of his predicate felonies

was an armed robbery, which had as an element “the threatened use of force

against the person of another.” United States v. Lockley, 632 F.3d 1238, 1245

(11th Cir. 2011). 1 Johnson’s remaining challenge likewise lacks merit, because he

has failed to demonstrate that the district court plainly erred in relying on the

1
       Because the Supreme Court’s Johnson decision was rendered after the briefing in this
case, we ordered supplemental briefing. In his supplemental brief, Appellant here concedes:
       The Presentence Investigation Report lists Anthony Johnson’s predicates as
       Florida convictions for robbery with a firearm or deadly weapon pursuant to Fl.
       Stat. §812.13(2)(a). At this time, it is not plain error to find that Florida’s
       abovementioned robbery offense qualified as a violent felony under ACCA in
       light of United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011). Accordingly,
       the [Supreme Court’s] Johnson does not change the assessment of Florida robbery
       as a violent felony at this time.
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undisputed facts of the PSI to determine the dates of his prior offenses. Descamps

itself did not address the propriety of reliance on undisputed facts in the PSI, or

how courts should determine whether prior felonies were committed on different

occasions.2 Accordingly, Johnson cannot demonstrate that any potential error

committed by the district court was plain, and we affirm.

                                                VI

       We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,

169 L.Ed.2d 445 (2007). First, we ensure that the district court committed no

significant procedural error, such as improperly calculating the Guidelines or

failing to consider the § 3553(a) factors. Id. at 51, 128 S.Ct. at 597. If a sentence

is free of procedural errors, we then determine whether the sentence imposed was

substantively reasonable, taking into account the totality of the circumstances. Id.

The party who challenges the sentence bears the burden of showing that it is

unreasonable in light of the record and the § 3553(a) factors. United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

       The district court must impose a sentence that is “sufficient, but not greater

than necessary” to comply with the purposes of sentencing set forth in 18 U.S.C.


2
        We note that this Court, in United States v. Braun, __ F.3d __, *12, 2015 WL 5201729
(11 Cir. Sept. 8, 2015), held that PSIs from previous, unrelated cases could not be used but it did
not extend that holding to PSIs from the cases underlying the appeal.
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§ 3553(a)(2), including the need to promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from

further crimes of the defendant. See 18 U.S.C. § 3553(a)(2). Additionally, in

imposing a particular sentence the court must consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, any relevant policy

statements of the Sentencing Commission, the need to avoid unwarranted

disparities in sentencing, and the need to provide restitution to victims. Id.

§ 3553(a)(1), (3)-(7). The weight given to any particular factor is committed to the

sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007). However, we will remand 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) factors.” United States v. Irey, 612 F.2d 1160, 1190 (11th

Cir. 2010) (en banc).

      Although we do not presume that a sentence falling within the guideline

range is reasonable, we ordinarily expect such a sentence to be reasonable. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence imposed well

below the statutory maximum penalty also indicates that the sentence is

reasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)

(holding that a within-guideline sentence was reasonable in part because it was


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well below the statutory maximum).

      Here, Johnson’s sentence is not procedurally unreasonable because, as

discussed above, the ACCA enhancement was properly applied in this case.

Likewise, Johnson’s sentence is not substantively unreasonable because the district

court did not abuse its discretion in giving greater weight to Johnson’s criminal

history than to his mitigating circumstances. Furthermore, the sentence imposed

was within the guideline range, which we ordinarily expect to be reasonable, and

was well below the statutory maximum term of life imprisonment. Accordingly,

we affirm.

      AFFIRMED.




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