           Case: 12-14655   Date Filed: 10/15/2013   Page: 1 of 16


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14655
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:12-cr-60038-WPD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DANIEL MCKINLEY,

                                                          Defendant-Appellant.



                       ________________________

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

                            (October 15, 2013)

Before TJOFLAT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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      Daniel McKinley appeals his 209-month total sentence imposed by the

district court after a jury convicted him of interference with commerce by violence,

in violation of 18 U.S.C. § 1951(a) (Count 1); and using and carrying a firearm

during and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A) (Count 2). McKinley maintains the district court erred by

(1) violating his Sixth Amendment rights by imposing a seven-year mandatory

minimum sentence on Count 2 based on the judicially-found fact that he

brandished a firearm; (2) assessing him a two-level enhancement under U.S.S.G.

§ 3C1.1 for obstruction of justice; and (3) imposing an above-guidelines sentence

as to Count 1. After a thorough review of the record and consideration of the

parties’ briefs, we affirm.

                                I. BACKGROUND

      On September 23, 2011, a man wearing a black mask and carrying a gun

entered the convenience store at a Chevron gas station in Lauderdale Lakes,

Florida. Mohammad Khan, the manager and part-owner of the station who was

working that day, immediately tried to close himself in the store’s cashier’s booth

using a bulletproof door. The robber, however, prevented the door from closing

with his left hand. Using his right hand, the robber pointed his gun at Khan and

ordered him to open the door. After Khan obeyed, the robber emptied two cash

registers and exited the booth. Khan then succeeded in locking himself inside the


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booth, but, in the process, also locked the robber inside the store. Unable to leave,

the robber pointed his gun at Khan and screamed at him to open the door. Khan

unlocked the door using a button beneath the cash register, and the robber kicked

the door open and exited.

      While Khan was waiting for the police to arrive, he noticed several blood

stains inside the store. Once the police arrived, an officer collected blood samples

from around the exit door, the door inside the cashier’s booth, and the floor inside

the cashier’s booth. The officer also collected a fingerprint from the door inside

the cashier’s booth.

      A federal grand jury subsequently returned a two-count indictment charging

McKinley with interfering with commerce by threats or violence and using or

carrying a firearm during and in relation to a crime of violence. In relevant part,

Count 2 specifically charged that McKinley “did knowingly use and carry a

firearm during and in relation to a crime of violence, and did knowingly possess a

firearm in furtherance of a crime of violence . . . .” However, the indictment cited

18 U.S.C. § 924(c)(1)(A)(ii), the statutory provision that prescribes a seven-year

mandatory minimum sentence for brandishing a firearm during and in relation to a

crime of violence.

      At trial, the Government presented evidence that McKinley’s fingerprints

positively matched the fingerprint taken from the door in the cashier’s booth, and


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his DNA matched that in the blood samples obtained from the crime scene. While

testifying in his own defense, McKinley explained he was a regular visitor at

Khan’s Chevron station, but repeatedly denied robbing the gas station. He also

denied that his blood was present in the convenience store, and maintained the

Government’s DNA analysis was inaccurate. McKinley similarly denied his

fingerprint was found inside the cashier’s booth. The jury convicted McKinley on

both counts. The verdict form provided that the jury found McKinley guilty as to

Counts 1 and 2 “as charged in the Indictment.” The form, however, did not

include any specific findings of fact.

      In preparing McKinley’s presentence investigation report (PSI), the

probation officer assigned him a base-offense level of 20, pursuant to U.S.S.G.

§ 2B3.1(a). McKinley received an additional two points under § 2B3.1(b)(2)(F)

because the crime involved threats of death, as well as a two-level enhancement

under § 3C1.1 for obstruction of justice, yielding a total adjusted offense level of

24. Based on a 1990 state conviction for grand theft, McKinley was assessed three

criminal history points resulting in a criminal history category of II. The PSI also

enumerated McKinley’s numerous other state convictions for offenses dating from

1972 through 1999—including robbery, grand theft, burglary, drug offenses, and

resisting an officer without violence—but those offenses did not figure into his

criminal history score because of their age. Given a total adjusted offense level of


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24 and a criminal history category of II, McKinley’s guidelines range for Count 1

was 57 to 71 months’ imprisonment, with a statutory maximum of 20 years’

imprisonment. The PSI further noted that McKinley brandished a firearm during

the robbery, so his guidelines range for Count 2 was the statutory minimum

sentence of seven years’ imprisonment enumerated in 18 U.S.C. § 924(c)(1)(A)(ii)

which was to run consecutive to his sentence for Count 1.

      Prior to sentencing, the district court issued a Federal Rule of Criminal

Procedure 32(h) notice that it was contemplating departing upward from

McKinley’s advisory guidelines range pursuant to U.S.S.G. § 4A1.3, or varying

upward pursuant to 18 U.S.C. § 3553(a), because his criminal history category of II

substantially underrepresented the seriousness of his criminal history and the

likelihood he would commit future crimes.

      At the sentencing hearing, the district court explained to McKinley that,

while the jury convicted him of using a firearm during a crime of violence, the

court was authorized to increase his mandatory minimum sentence if the court

found that he brandished the firearm during the commission of the robbery. The

district court clarified, “I can give you a five-year mandatory minimum

consecutive [sentence] if I think you just carried [the firearm] or used it. If I think

that you brandished it, then I can give you a seven-year mandatory minimum.”

Before imposing McKinley’s sentences, the court also stated:


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       I think that Mr. McKinley has unscored stale convictions that the
       Court can and should take into account . . . If you score all of those
       convictions, had they not been stale, he would come up with, I think,
       17 criminal history points, which is a category six criminal history. I
       think that’s the appropriate way under the Guidelines to have scored
       Mr. McKinley. So, under the Guideline rules, I depart upward to an
       offense level 24, criminal history category six, for a range of a
       hundred to . . .125 months.

The court further explained that, considered as an upward variance, an

above-guidelines sentence would be appropriate to protect the public, promote

respect for the law, and to deter others. Accordingly, the district court sentenced

McKinley to 125 months’ imprisonment as to Count 1, and a consecutive 84

months’ imprisonment as to Count 2, for a total of 209 months’ imprisonment.

This appeal followed.

                                     II. DISCUSSION

A. Seven-Year Mandatory Minimum Sentence

       McKinley argues for the first time on appeal that the district court

unconstitutionally increased his statutory mandatory minimum sentence as to

Count 2 based on a fact not found by the jury beyond a reasonable doubt.

Specifically, he maintains that, under the Sixth Amendment, the jury was required

to find he brandished a firearm rather than simply used or carried one in the

commission of his offense. 1 In response, the Government argues only that, at the


       1
      McKinley also argues the imposition of an enhanced sentence violated his Fifth
Amendment rights, by which we understand him to be attempting to raise a challenge to the
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time McKinley was sentenced, the Supreme Court’s decision in Harris v. United

States, 536 U.S. 545, 122 S. Ct. 2406 (2002), squarely foreclosed his argument.

       While McKinley’s appeal was pending before this Court, the Supreme Court

decided Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), which explicitly

overruled Harris and held that any fact that increases a defendant’s mandatory

minimum sentence is an element of the offense that must be submitted to the jury

and proved beyond a reasonable doubt. It is by now well established that “[t]he

relevant time period for assessing whether an error is plain is at the time of

appellate consideration.” United States v. Bane, 720 F.3d 818, 830 (11th Cir. 2013)

(quotation omitted); see also Henderson v. United States, 133 S. Ct. 1121, 1130-31

(2013). As such, we must address the impact of Alleyne on McKinley’s seven-year

sentence for brandishing a firearm during and in relation to a crime of violence.

       Alleyne affords McKinley minimal relief, however, because he failed to

preserve his argument that his Sixth Amendment rights were violated by the

district court’s imposition of an enhanced mandatory minimum sentence. See

United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998) (“The plain error rule

places a daunting obstacle before [the appellant].”). McKinley did not raise a


adequacy of his indictment. McKinley, however, did not elaborate any argument regarding the
indictment in his initial brief or cite any authority relevant to such an argument. Accordingly, we
deem any Fifth Amendment argument abandoned. See United States v. Curtis, 380 F.3d 1308,
1310 (11th Cir. 2004). Even if the issue is not abandoned, we note the indictment cited the
correct statutory provision, which was likely sufficient. See United States v. Nealy, 232 F.3d
825, 830 n.5 (11th Cir. 2000); United States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998).
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constitutional objection to his sentence before the district court. We have

explained that “not every objection is a constitutional objection,” and have held

that to preserve a claim of error under Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348 (2000), a defendant must raise an objection framed in constitutional

terms. See United States v. Candelario, 240 F.3d 1300, 1303-04 (11th Cir. 2001).

Thus, because Alleyne was an extension of Apprendi, see 133 S. Ct. at 2160, we

adopt the same rule and hold that to preserve a claim of Alleyne error, a defendant

must make a timely constitutional objection. 2 We further hold that, as with other

alleged constitutional errors, specifically errors of the Apprendi variety, the failure

to make a timely objection results in this Court’s application of plain error review.

See, e.g., United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir. 2005);

Fed. R. Crim. P. 52(b).

       Under the plain error standard, “before an appellate court can correct an

error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781,

1785 (2002) (quotations and brackets omitted). If all three conditions are met, we

may then exercise our discretion to correct the error, “but only if (4) the error



       2
          A defendant may make such an objection by, for example, (1) invoking Alleyne or its
direct predecessors; (2) objecting that a fact relevant to an increased mandatory minimum should
be submitted to the jury; or (3) arguing that such a fact must be proved beyond a reasonable
doubt. See United States v. Munoz, 430 F.3d 1357, 1374 (11th Cir. 2005).
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seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation and brackets omitted).

      In pertinent part, 18 U.S.C. § 924(c)(1)(A) provides a five-year mandatory

minimum sentence for any person who, during and in relation to a crime of

violence that may be prosecuted in federal court, uses or carries a firearm. 18

U.S.C. § 924(c)(1)(A)(i). However, if the defendant brandishes the firearm during

the commission of the crime, the mandatory minimum sentence is increased by two

years, to seven years’ imprisonment. Id. § 924(c)(1)(A)(ii). The statute defines

“brandish” to mean “with respect to a firearm, to display all or part of the firearm,

or otherwise make the presence of the firearm known to another person, in order to

intimidate that person, regardless of whether the firearm is directly visible to that

person.” Id. § 924(c)(4).

      In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-63. Subsequently, the Supreme Court

held in Harris that a fact increasing a defendant’s mandatory minimum sentence,

specifically brandishing a firearm under § 924(c)(1)(A)(ii), was not subject to the

Apprendi rule and could be found by a sentencing judge rather than a jury. Harris,

536 U.S. at 556-57, 568-69, 122 S. Ct. at 2414, 2420. As noted, the Supreme


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Court overruled Harris in Alleyne, concluding that the “distinction between facts

that increase the statutory maximum and facts that increase only the mandatory

minimum” was inconsistent with Apprendi. 133 S. Ct. at 2155. Instead, the Court

held that “any fact that increases the mandatory minimum is an ‘element’ that must

be submitted to the jury.” Id.

      In Alleyne, a jury convicted the defendant of, inter alia, robbery affecting

interstate commerce, and using or carrying a firearm in relation to a crime of

violence, in violation of § 924(c)(1)(A). Id. at 2155-56. As the Supreme Court

explained, “[t]he jury indicated on the verdict form that Alleyne had used or

carried a firearm during and in relation to a crime of violence, but did not indicate

a finding that the firearm was brandished.” Id. at 2156 (quotations and alterations

omitted).   Over Alleyne’s objection, the district court imposed a seven-year

mandatory minimum sentence under § 924(c)(1)(A)(ii), and the Fourth Circuit

affirmed. Id.

      In vacating the Fourth Circuit’s judgment and remanding for resentencing,

the Supreme Court held that, “[w]hile Harris limited Apprendi to facts increasing

the statutory maximum, the principle applied in Apprendi applies with equal force

to facts increasing the mandatory minimum.” Id. at 2160. The Court explained,

“[i]t is indisputable that a fact triggering a mandatory minimum alters the

prescribed range of sentences to which a criminal defendant is exposed.” Id.


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Thus, “because the legally prescribed range is the penalty affixed to the

crime, . . . it follows that a fact increasing either end of the range produces a new

penalty and constitutes an ingredient of the offense.” Id. (emphasis in original).

The Court reasoned that “the core crime and the fact triggering the mandatory

minimum sentence together constitute a new, aggravated crime, each element of

which must be submitted to the jury.” Id. at 2161. Because there was “no basis in

principle or logic to distinguish facts that raise the maximum from those that

increase the minimum,” the Supreme Court expressly overruled Harris as

inconsistent with Apprendi. Id. at 2163. The Court then held that the district

court’s finding by a preponderance of the evidence that Alleyne brandished a

firearm violated his Sixth Amendment rights, and remanded for resentencing

consistent with the jury’s verdict. Id. at 2163-64.

      In this case, we will assume, arguendo, that McKinley demonstrated error

that is plain under Alleyne. We will also assume for the sake of argument that the

alleged error affected his substantial rights. Nevertheless, McKinley is not entitled

to correction of the alleged error because he has not satisfied the fourth prong of

plain error review. See Cotton, 535 U.S. at 631, 122 S. Ct. at 1785. The Supreme

Court has explained that where the evidence of a statutory element of an offense is

overwhelming and essentially uncontroverted, there is no basis for concluding the

error seriously affected the fairness, integrity, or public reputation of the judicial


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proceedings. Id. at 632-33, 122 S. Ct. at 1786. In the instant case, the evidence

that McKinley brandished a firearm was overwhelming. Khan testified that, after

the gas station robber prevented the bulletproof door on the cashier’s booth from

closing, the robber pointed his gun at Khan and ordered him to open the door.

Similarly, after Khan inadvertently locked the robber inside the store, the robber

again pointed his gun at Khan and screamed at him to open the exit door. Another

witness who observed the robbery from his parked car outside the store testified

that he saw the robber waiving a gun and shouting. See 18 U.S.C. § 924(c)(4)

(defining the term “brandish”).

      Although McKinley repeatedly denied committing the robbery, and objected

to the PSI on that same basis, McKinley’s testimony was convincingly

controverted by DNA and fingerprint evidence establishing his presence inside the

cashier’s booth. In fact, his denial of any involvement in the offense was so

implausible as to amount to perjury, as discussed below. Accordingly, given such

evidence, there is no basis for us to conclude the alleged Alleyne error seriously

affected the fairness, integrity, or public reputation of judicial proceedings, and we

affirm McKinley’s 84-month sentence on Count 2.

 B. Obstruction of Justice Enhancement

      McKinley also argues that the district court erred by assessing him a

two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. He


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maintains that he did not provide materially false testimony and simply exercised

his constitutional right to proceed to trial.

      The district court did not clearly err in imposing an enhancement for

obstruction of justice. See United States v. Jennings, 599 F.3d 1241, 1254 (11th

Cir. 2010). Section 3C1.1 provides for a two-level increase to a defendant’s base

offense level if “the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1.

The commission of perjury under oath on material matters, not due to confusion,

mistake, or faulty memory, is grounds for an obstruction enhancement. United

States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116 (1993); United States v.

Williams, 627 F.3d 839, 845 (11th Cir. 2010); U.S.S.G. § 3C1.1, comment.

(n.4(B)).

      The record fully supports the district court’s finding that McKinley perjured

himself because his testimony that he had no involvement in the robbery was

material to the issue of his guilt, see U.S.S.G. § 3C1.1, comment. (n.6), and was

expressly contradicted by DNA and fingerprint evidence from the scene of the

crime. Furthermore, while a defendant has a right to testify on his own behalf, the

Supreme Court has made it abundantly clear that “a defendant’s right to testify




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does not include a right to commit perjury.” Dunnigan, 507 U.S. at 96, 113 S. Ct.

at 1117.3

C. Upward Departure or Variance

       McKinley further asserts the district court erred in imposing an

above-guidelines sentence on Count 1. The district court, however, did not abuse

its discretion in imposing McKinley’s above-guidelines sentence. See Gall v.

United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007) (“Regardless of whether

the sentence imposed is inside or outside the Guidelines range, the appellate court

must review the sentence under an abuse-of-discretion standard.”).

       Under § 4A1.3, a district court may depart from the advisory sentencing

range “[i]f reliable information indicates that the defendant’s criminal history

category substantially under-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other crimes.” U.S.S.G.

§ 4A1.3(a)(1). The extent of the departure should be determined by reference to

the criminal history category “applicable to defendants whose criminal history or

likelihood to recidivate most closely resembles” that of the individual being

sentenced. Id. § 4A1.3(a)(4)(A).



       3
          Because we may affirm the district court on any ground supported by the record, United
States v. Hall, 714 F.3d 1270, 1271 (11th Cir. 2013), we need not consider the district court’s
alternative holding that the § 3C1.1 enhancement was also warranted because McKinley made
phone calls following his arrest purportedly instructing his daughter to destroy physical
evidence.
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       On this record, we cannot say the district court abused its discretion in

departing upward based on McKinley’s extensive criminal history, as expressly

contemplated by § 4A1.3(a).4 McKinley had numerous prior convictions that were

not counted in computing his criminal history score. His offenses spanned most of

his adult life, ranging from the time he was 18 years’ old until he was at least 45

years’ old. With more than 25 years of criminal history encompassing crimes from

burglary and robbery to grand theft and reckless driving, we agree with the district

court that the assessment of only 3 criminal history points substantially

underrepresented McKinley’s criminal history and likelihood of recidivism.

       In the alternative, McKinley’s 125-month sentence was appropriate as an

upward variance. As the district court found, the sentence was appropriate in order

to protect the public, to promote respect for the law, and to deter others. See 18

U.S.C. § 3553(a); United States v. Early, 686 F.3d 1219, 1222 (11th Cir. 2012).

We also note that McKinley’s sentence was well below the statutory maximum of

20 years’ imprisonment, which is a further indicator the sentence was reasonable.

See 18 U.S.C. § 1951(a); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th

Cir. 2008). Accordingly, we affirm McKinley’s 125-month sentence on Count 1.


       4
         McKinley does not argue the district court erred by failing to first explicitly consider
whether a criminal history category of III was appropriate, see United States v. Valdes, 500 F.3d
1291, 1292 n.1 (11th Cir. 2007), and the issue is therefore waived or abandoned, see Curtis, 380
F.3d at 1310 (explaining the “long-standing rule in this circuit, as well as in the federal rules
themselves, that issues not raised by a defendant in his initial brief on appeal are deemed
waived”).
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                       III. CONCLUSION

For the foregoing reasons, McKinley’s sentences are AFFIRMED.




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