                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                  No. 13-2638
                                  ___________

                          UNITED STATES OF AMERICA

                                        v.

                               JAMAEL STUBBS,
                                              Appellant
                            _______________________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                       D.C. Criminal No. 1-12-cr-00009-004
                        (Honorable Christopher C. Conner)
                                 ______________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 January 10, 2014

            Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.

                             (Filed: August 28, 2014)


                               _________________

                            OPINION OF THE COURT
                               _________________

SCIRICA, Circuit Judge.
       Defendant Jamael Stubbs was the getaway driver for an armed bank robbery. He

was indicted in the Middle District of Pennsylvania and, through vicarious liability, was

convicted of one count of armed bank robbery in violation of 18 U.S.C. § 2113(a) and

(d), and one count of brandishing a firearm during a crime of violence in violation of 18

U.S.C. § 924(c)(1)(A)(ii). Stubbs appeals his § 924(c) conviction and sentence arguing

that (1) there was insufficient evidence to convict him of brandishing a firearm, and

(2) the imposition of a higher mandatory sentence for brandishing a firearm violates the

Supreme Court’s recent decision in Alleyne v. United States, 133 S. Ct. 2151 (2013),

because his indictment only charged him with using and carrying a firearm. Because

there was sufficient evidence to convict him of brandishing a firearm and the seven-year

sentence did not constitute reversible plain error, we will affirm.1

                                               I.

       On August 29, 2012, a grand jury in the Middle District of Pennsylvania returned

a twelve-count indictment charging Stubbs with two counts of armed bank robbery in

violation of 18 U.S.C. § 2113(a) and (d), and two counts of using and carrying a firearm

during the robberies in violation of 18 U.S.C. § 924(c)(1)(A).2 He was charged along

with three co-defendants: Tristan Green, Nijul Alexander, and Jami Shabazz. Alexander

and Shabazz pled guilty and testified for the prosecution.

       According to Alexander’s testimony, Stubbs was intimately involved in the

1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction
under 28 U.S.C. § 1291.
2
 The charges related to two alleged bank robberies that took place in November and December
of 2007. The government withdrew the charges relating to the December robbery, and Stubbs
proceeded to trial only on the offenses arising out of the November robbery.
                                               2
planning and execution of the November 2007 robbery. Stubbs, Green, and Alexander

planned the logistics in multiple discussions and rehearsed how the robbery would take

place. The defendants had planned that Stubbs would drive Green and Alexander to the

bank and, after the robbery, would drive Green and Alexander to another vehicle driven

by Shabazz, where the two gunmen would switch cars to avoid police detection.

       As rehearsed and scheduled, Stubbs drove Green and Alexander to the bank on the

day of the robbery and remained in the vehicle while the two robbed the bank at

gunpoint. According to photographs taken from bank video, bank personnel testimony,

and co-conspirator admission, Green and Alexander pointed their guns at various bank

personnel during the robbery. After completing the robbery, Green, Alexander, and

Stubbs escaped in Stubbs’s car with backpacks filled with stolen money. As they fled,

dye packets contained among the stolen cash exploded. Green and Alexander threw the

backpacks containing the stained money and Alexander’s gun out of Stubbs’s car. Police

later identified those backpacks as ones purchased by Green and Stubbs a few days

before the robbery at a nearby Walmart. Stubbs dropped off Green and Alexander at

Shabazz’s car, and the four defendants reconvened at Stubbs’s house to clean the dye

from his car.

       At the close of the government’s case, Stubbs moved for a judgment of acquittal

on the armed bank robbery and firearm counts. The District Court denied the motion,

concluding “there is sufficient evidence in the record from which a reasonable jury could

reach a verdict of guilty.” App. 862. The jury found Stubbs guilty on both counts.

Although the indictment charged Stubbs with “carry[ing] and us[ing] a firearm during . . .

                                            3
a crime of violence . . . in violation of . . . Section 924(c)(1)(A),” App. 41, the jury found

that “Stubbs or a coconspirator did knowingly . . . brandish a firearm during . . . a crime

of violence,” App. 59 (emphasis added). Stubbs was sentenced to a prison term of 154

months—70 months for armed robbery under 18 U.S.C. § 2113(a) and (d), plus 84

months (seven-year) statutory minimum for brandishing a firearm during a crime of

violence under § 924(c)(1)(A)(ii).3 Stubbs filed a timely notice of appeal challenging his

conviction and sentence for the § 924(c) charge. Stubbs does not challenge his conviction

for armed bank robbery under 18 U.S.C. § 2113(a) and (d).

                                               II.

       Stubbs advances two arguments on appeal, both concerning his § 924(c)

conviction for brandishing a firearm during a crime of violence: (1) that there was

insufficient evidence to convict him of brandishing a firearm under either a Pinkerton co-

conspirator theory or an aiding and abetting theory of liability, and (2) that the imposition

of a mandatory seven-year sentence for brandishing a firearm under § 924(c)(1)(A)(ii)

violates Alleyne v. United States, 133 S. Ct. 2151 (2013), because Stubbs’s indictment

only charged him with “carry[ing] and us[ing] a firearm,” but not with the separate

“brandishing” element.

                                               A.

       Stubbs first challenges the District Court’s denial of his motion for a judgment of

acquittal on the § 924(c) count. Stubbs argues the government did not produce sufficient


3
 The crime charged in the indictment, using or carrying a firearm during a crime of violence,
carries a five-year mandatory minimum. 18 U.S.C. § 924(c)(1)(A)(i).

                                               4
evidence to convict him under either theory of liability charged—Pinkerton co-

conspirator liability or aiding and abetting liability.

       We exercise plenary review over the sufficiency of the evidence supporting a

criminal conviction. United States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012). “[T]he

critical inquiry . . . is whether . . . any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Caraballo-Rodriguez,

726 F.3d 418, 424-25 (3d Cir. 2013) (en banc) (quoting Jackson v. Virginia, 443 U.S.

307, 318-19 (1979)). We accord deference to the jury’s verdict by viewing “the evidence

in the light most favorable to the Government” and drawing “all reasonable inferences in

favor of the jury verdict.” Moyer, 674 F.3d at 206 (quoting United States v. Riley, 621

F.3d 312, 329 (3d Cir. 2010)).

       The jury found Stubbs guilty of brandishing a firearm during commission of a

violent crime. Although Stubbs did not personally brandish a firearm during the bank

robbery, he can be vicariously liable for the offense under either a Pinkerton co-

conspirator theory or an aiding and abetting theory of liability. In Pinkerton v. United

States, 328 U.S. 640 (1946), “the Supreme Court held that the criminal act of one

conspirator in furtherance of the conspiracy is attributable to the other[ ] [conspirators]

for the purpose of holding them responsible for the substantive offense.” United States v.

Lopez, 271 F.3d 472, 480 (3d Cir. 2001) (internal quotation marks and citation omitted).

A defendant is liable for substantive offenses committed by co-conspirators under a

Pinkerton theory if (1) the defendant is a party to a criminal conspiracy, (2) one or more

co-conspirators committed the substantive offense in furtherance of the conspiracy, and

                                                5
(3) commission of the substantive offense was reasonably foreseeable. United States v.

Ramos, 147 F.3d 281, 286 (3d Cir. 1998).

       Stubbs only challenges the sufficiency of the evidence for the first prong of

Pinkerton, arguing that there was insufficient evidence that he entered into a conspiracy

to commit an armed bank robbery.4 But Stubbs’s argument is unavailing. The first prong

of Pinkerton requires only that a defendant enter into an unlawful conspiracy. See, e.g.,

Ramos, 147 F.3d at 286; United States v. Casiano, 113 F.3d 420, 427 (3d Cir. 1997). All

that the first prong of Pinkerton requires for Stubbs’s § 924(c) brandishing count is that

the jury find the defendant joined a criminal conspiracy. Accordingly, the first prong of

Pinkerton liability is satisfied if Stubbs entered into an agreement to rob a bank.5

       There was ample evidence in the record for a rational juror to find beyond a


4
  Stubbs does not challenge the sufficiency of the government’s evidence that a co-conspirator
brandished a firearm in furtherance of the conspiracy or that brandishing a firearm during the
robbery was reasonably foreseeable.
5
  Stubbs points to one sentence of the district court’s jury instructions to argue that the
government had the higher burden of proving that he knowingly and voluntarily entered into a
conspiracy to commit armed bank robbery with full knowledge that guns would be used.
Appellant Br. 24. But reading the jury instructions as a whole, the district court adequately
instructed the jury on the first prong of Pinkerton liability. See App. 964 (“What the government
must prove beyond a reasonable doubt is that two or more persons in some way or manner
arrived at some type of an agreement, mutual understanding, or meeting of the minds to try to
accomplish a common and unlawful objective.” (emphasis added)); id. at 962-63 (“The
government does not have to prove that . . . Stubbs specifically agreed or knew that these
offenses would be committed. However, the government must prove that the offenses were
reasonably foreseeable to . . . Stubbs as a member of the conspiracy and within the scope of the
agreement . . . .”); id. at 963-64 (“The government does not have to prove . . . that all members of
the conspiracy . . . agreed to all the details or agreed to what the means were by which the
objectives would be accomplished.”); id. at 965 (“The government does not have [to] prove that
the alleged conspirators agreed to commit all of the crimes. The government, however, must
prove that they agreed to commit at least one of the object[ive] crimes . . . .”); id. at 931 (“You
are not to single out any one instruction alone as stating the law, but must consider the
instructions as a whole in reaching your decisions.”).

                                                 6
reasonable doubt that Stubbs joined a conspiracy to rob a bank with Green and

Alexander. According to Alexander’s testimony, Stubbs was intimately involved in the

planning and execution of the November robbery. Stubbs, Green, and Alexander planned

the logistics of the robbery in multiple discussions, and they rehearsed the robbery.

Furthermore, there was ample evidence that the robbery actually took place and that

Stubbs participated in the commission of the crime as rehearsed. In sum, there was

sufficient evidence that Stubbs entered into a criminal conspiracy with Green and

Alexander and the evidence of Stubbs’s role in the planning and execution of the robbery

was sufficient for a rational juror to find, beyond a reasonable doubt, Stubbs vicariously

liable for a violation of § 924(c)(1)(A)(ii) under a Pinkerton co-conspirator theory.6

                                               B.

       Stubbs also argues the imposition of a mandatory seven-year sentence for

brandishing a firearm under § 924(c)(1)(A)(ii) violates Alleyne v. United States, 133 S.

Ct. 2151 (2013), because Stubbs’s indictment charged him with carrying and using a

firearm but not with the separate element of brandishing a firearm. Accordingly, we must



6
  Stubbs also challenges the sufficiency of the evidence for his conviction under an aiding and
abetting theory. In a case decided during the pendency of this appeal, the Supreme Court
clarified the standard for showing that a defendant aided and abetted a § 924(c) offense. See
Rosemond v. United States, 134 S. Ct. 1240 (2014). The Court in Rosemond held that convicting
a defendant for a § 924(c) offense under an aiding and abetting theory requires the government to
prove that “the defendant actively participated in the underlying . . . violent crime with advance
knowledge that a confederate would use or carry a gun during the crime’s commission.” Id. at
1243 (emphasis added). The defendant must have advance knowledge of the use of a firearm so
that he or she has the opportunity “to make the relevant legal (and indeed moral) choice” to join
the criminal venture or “to quit the crime.” Id. at 1249. Since we find the evidence sufficient to
convict Stubbs under a Pinkerton theory of vicarious liability, we need not decide whether there
was sufficient evidence of Stubbs’s advance knowledge under Rosemond.

                                                7
address (1) whether the “brandishing” element of § 924(c) must be charged in an

indictment, and, if so, (2) whether its omission constitutes reversible plain error.

                                              1.

       A person who uses or carries a firearm during a crime of violence faces a

consecutive sentence of at least five years’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(i). A

person who brandishes a firearm during a crime of violence faces a consecutive sentence

of at least seven years’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(ii). Stubbs’s indictment

charged him with “carry[ing] and us[ing] a firearm during . . . a crime of violence . . . in

violation of . . . Section 924(c)(1)(A).” App. 41. But the jury convicted Stubbs of

“brandishing” a firearm during the armed robbery, which carries a higher mandatory

sentence under § 924(c)(1)(A)(ii). App. 59. The additional “brandishing” element

increased his mandatory minimum sentence from five years to seven years.

       Less than a month after Stubbs was sentenced, the Supreme Court decided Alleyne

v. United States, 133 S.Ct. 2151 (2013). In an extension of Apprendi v. New Jersey, 530

U.S. 466 (2000), which held that—under the Fifth and Sixth Amendments to the United

States Constitution—any fact that increases the penalty for a crime beyond a statutory

maximum constitutes an element of a crime that must be charged in the indictment and

proved to the jury beyond a reasonable doubt, Alleyne held that any fact which increases

a mandatory minimum sentence also constitutes an element of a crime. Alleyne, 133 S.Ct.

at 2155. The Court in Alleyne determined that the “brandishing” provision of 18 U.S.C. §

924(c)(1)(A)(ii)—the same element at issue here—constitutes an element of a separate,




                                              8
aggravated § 924(c) offense that must be found by a jury beyond a reasonable doubt.7 Id.

at 2163.

       The government contends that the Supreme Court’s decision in Alleyne, unlike in

Apprendi, did not explicitly say that the element must also be charged in the indictment

and only requires that brandishing be found by a jury beyond a reasonable doubt. The

government therefore argues that Stubbs’s sentence does not run afoul of Alleyne because

the jury in Stubbs’s case found brandishing beyond a reasonable doubt. We disagree.

        To adequately address the government’s argument, we briefly recite the

jurisprudence’s evolution. In Jones v. United States, the Supreme Court noted that “under

the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees

of the Sixth Amendment, any fact (other than prior conviction) that increases the

maximum penalty for a crime must be charged in an indictment, submitted to a jury, and

proven beyond a reasonable doubt.” 526 U.S. 227, 243, n.6 (1999). One year later, the

Court confirmed this constitutional view expressed in Jones, holding that the Constitution

imposes those requirements in a case involving a state statute. See Apprendi, 530 U.S. at

476; see also United States v. Cotton, 535 U.S. 625, 627 (2002) (“In [Apprendi], we held

that . . . 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. In federal

prosecutions, such facts must also be charged in the indictment.” (internal quotation

marks and citations omitted)). The Apprendi Court reasoned that “[i]f a defendant faces


7
  In so doing, Alleyne overruled United States v. Harris, 536 U.S. 545 (2002), which held that
“brandishing” under § 924(c) was a sentencing factor that did not need to be alleged in the
indictment, submitted to the jury, or proved beyond a reasonable doubt.
                                                9
punishment beyond that provided by statute when an offense is committed under certain

circumstances but not others, it is obvious that both the loss of liberty and the stigma

attaching to the offense are heightened; it necessarily follows that the defendant should

not—at the moment the State is put to proof of those circumstances—be deprived of

protections that have, until that point, unquestionably attached.” Apprendi, 530 U.S. at

484.

       In Alleyne, the Court applied the constitutional requirements announced in

Apprendi to facts that increase a statutory minimum sentence. The Alleyne Court held that

“the principle applied in Apprendi applies with equal force to facts increasing the

mandatory minimum.” Alleyne, 133 S. Ct. at 2160; see also id. at 2163 (“[T]here is no

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

increase the minimum.”). Thus, the constitutional requirements that apply to facts that

increase a statutory maximum apply to facts that increase a statutory minimum. The

Alleyne Court concluded

       The District Court imposed the 7-year mandatory minimum sentence based
       on its finding by a preponderance of evidence that the firearm was
       “brandished.” Because the finding of brandishing increased the penalty to
       which the defendant was subjected, it was an element, which had to be
       found by the jury beyond a reasonable doubt. The judge, rather than the
       jury, found brandishing, thus violating petitioner’s Sixth Amendment
       rights.

Id. at 2163-64. The Court expressly relied on the fact that the brandishing element was

not submitted to the jury in overturning Alleyne’s sentence. That the Court did not hold

in the alternative that the brandishing element was also improperly omitted from the

indictment does not mean—as the government argues here—that only some of the

                                             10
constitutional requirements of Apprendi apply to facts that increase a mandatory

minimum. Rather, because “the principle applied in Apprendi applies with equal force to

facts increasing the mandatory minimum,” Alleyne, 133 S. Ct. at 2160, the fact of

brandishing is an element of the crime that “must be charged in an indictment,” Apprendi,

530 U.S. at 476. In other words, if the failure of a federal indictment to charge an element

that increased a statutory maximum constitutes an Apprendi error, see Cotton, 535 U.S. at

627, then the failure of a federal indictment to charge an element that increased the

statutory minimum constitutes an Alleyne error. Here, the omission of “brandishing”—an

element of 18 U.S.C. § 924(c)(1)(A)(ii) that increases the statutory minimum—from

Stubbs’s indictment is an error in light of Alleyne.

                                               2.

       Because the omission of the brandishing element from the indictment was not

challenged before the district court, we review Stubbs’s sentence for “plain error” under

Federal Rule of Criminal Procedure 52(b). See Cotton, 535 U.S. at 631. A reversible

plain error requires: (1) “an error” (2) “that is plain,” (3) “that affect[s] substantial

rights,” and (4) that “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal

quotation marks and citation omitted). Although Alleyne was decided after Stubbs was

sentenced, we consider whether an error was plain at the time of appellate review. See

Henderson v. United States, 133 S. Ct. 1121, 1127 (2013).

       In United States v. Cotton, the Supreme Court faced a question similar to the one

we face here. 535 U.S. at 625. A federal indictment charged Cotton with conspiracy to

                                               11
distribute a “detectable amount” of cocaine, but Cotton was convicted of and sentenced

for conspiracy to distribute “at least 50 grams of cocaine base.” Id. at 628. The quantity

element raised the statutory maximum sentence under 21 U.S.C. § 841(b). Because

Apprendi was decided after Cotton was sentenced but during his direct appeal, the Court

in Cotton had to decide whether an indictment’s omission of an element that increased a

statutory maximum sentence constituted reversible plain error. Id. at 627. The Court held

that although the omission of the element from the indictment was an error, it “did not

seriously affect the fairness, integrity, or public reputation of judicial proceedings”

because of the “overwhelming and uncontroverted evidence” that Cotton’s crime

involved at least 50 grams of cocaine base. Id. at 632-34 (“The evidence that the

conspiracy involved at least 50 grams of cocaine base was overwhelming and essentially

uncontroverted. . . . Surely the grand jury, having found that the conspiracy existed,

would have also found that the conspiracy involved at least 50 grams of cocaine base.”).

       Likewise, the omission of “brandishing” from Stubbs’s indictment was an error,

but not one that “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings” because the evidence that at least one of Stubbs’s co-conspirators

brandished a firearm during the bank robbery was “overwhelming and uncontroverted.”

Cotton, 535 U.S. at 633-34. Photographs taken during the robbery from the bank’s

surveillance video show Stubbs’s co-conspirators pointing guns at bank employees. One

of Stubbs’s co-conspirators testified that he brandished a gun during the bank robbery.

And several bank personnel testified at trial that firearms were pointed at them during the

robbery. Moreover, there was no evidence challenging or undermining the fact that

                                              12
firearms were brandished during the bank robbery. Based on this evidence, the grand

jury, having found that the conspiracy existed, would have also found that the crime

involved brandishing firearms. Because of the “overwhelming and uncontroverted”

evidence of brandishing a firearm, the Alleyne error here “did not seriously affect the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 632-33.

Accordingly, Stubbs’s sentence for brandishing a firearm under § 924(c)(1)(A)(ii) does

not constitute reversible plain error.

                                             III.

       For the foregoing reasons, we will affirm Stubbs’s conviction and sentence.




                                              13
