              Case: 18-14077    Date Filed: 11/13/2019   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-14077
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 1:17-cr-00399-ELR-CMS-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus


DONTE DESHAWN ALSTON,

                                                              Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                               (November 13, 2019)

Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:

      Donte Alston, a federal prisoner, pled guilty to a two-count federal

indictment charging him with (1) armed bank robbery, in violation of 18 U.S.C. §§
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2113(a) and (d) (Count One); and (2) brandishing a firearm during a crime of

violence (i.e. the armed bank robbery), in violation of 18 U.S.C. § 924(c)(1)(A)(ii)

(Count Two). At sentencing, the District Court imposed a total sentence of 121

months – 37 months on Count One and 84 months on Count Two. On appeal,

Alston first argues that his conviction for armed bank robbery does not qualify as a

“crime of violence” under 18 U.S.C. § 924(c)(3)(A)’s “elements clause.” He

contends that published orders in our Circuit stating otherwise, in the context of

second or successive applications for habeas corpus relief, do not (or, more

accurately, should not) constitute binding precedent. Second, Alston argues that

his within-guideline sentence on Count One was substantively unreasonable

because the District Court ignored mitigating factors, including his lack of criminal

history, drug addiction, and difficult upbringing. We reject Alston’s arguments

and affirm his sentence.

                                          I.

      We turn first to Alston’s argument that his conviction for armed bank

robbery does not constitute a “crime of violence.” 18 U.S.C. § 924(c) provides a

mandatory minimum sentence of seven years for anyone who brandishes a firearm

during the commission of any crime of violence or drug trafficking crime. 18

U.S.C. § 924(c)(1)(A)(ii). For the purposes of § 924(c), “crime of violence” means

an offense that is a felony under federal law and:

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      (A) has as an element the use, attempted use, or threatened use of physical
      force against the person or property of another, or

      (B) that by its nature, involves a substantial risk that physical force against
      the person or property of another may be used in the course of committing
      the offense.

Id. § 924(c)(3)(A)–(B). These two sections are respectively known as the

“elements clause,” § 924(c)(3)(A), and the “residual clause,” § 924(c)(3)(B).

United States v. Davis, 139 S. Ct. 2319, 2324 (2019). The Supreme Court in

United States v. Davis held that § 924(c)(3)(B)’s residual clause is

unconstitutionally vague. Id. at 2336. Nevertheless, this Court has held that armed

bank robbery otherwise qualifies as a crime of violence under the elements clause

of § 924(c), which Davis did not address and remains valid. In re Hines, 824 F.3d

1334, 1337 (11th Cir. 2016); see also In re Pollard, 931 F.3d 1318, 1321 (11th Cir.

2019) (indicating that a Davis challenge is futile when the crime for which the

defendant was convicted also satisfies the § 924(c)(3)(A) elements clause).

      Under our prior precedent rule, “a prior panel’s holding is binding on all

subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc.” United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The prior panel precedent rule

applies with equal force as to prior published decisions on applications to file

second or successive habeas corpus petitions, which are binding precedent. In re

Lambrix, 776 F.3d 789, 794 (11th Cir. 2015). Further, published orders in the
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context of second or successive applications are binding precedent in direct

appeals. United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018).

       Here, Alston’s challenges to his § 924(c) conviction are foreclosed by

binding precedent that armed bank robbery is a qualifying crime of violence under

§ 924(c)(3)(A). Hines, 824 F.3d at 1337. Hines was decided in the context of a

second or successive habeas petition and, per the rule put forth in St. Hubert,

constitutes binding precedent in direct appeals. St. Hubert, 909 F.3d at 346.

Alston contends that St. Hubert was “wrongly decided” and that decisions in the

context of second or successive applications should not constitute binding

precedent, but St. Hubert is the law in our Circuit. Therefore, we are required here

to follow our decision in Hines, regardless of the procedural context of that

decision.1 St. Hubert, 909 F.3d at 346. Therefore, we affirm Alston’s Count Two

conviction for brandishing a firearm during a crime of violence.

                                               II.

       We next turn to Alston’s challenge to his 37-month sentence on Count One,

the armed bank robbery count. We review the reasonableness of a sentence under

the deferential abuse of discretion standard of review. Gall v. United States, 552




       1
          Alston filed a motion to stay appellate proceedings pending the grant or denial of
certiorari in U.S. Supreme Court case 18-6172, Sherman Williams v. United States, which
presents the question of whether treating decisions in the context of second or successive
petitions as binding precedent is constitutional. This Court denied Alston’s motion to stay.
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U.S. 38, 51, 128 S. Ct. 586, 597 (2007). In reviewing a sentence for

unreasonableness, we consider whether the district court abused its discretion in

concluding that the factors found in 18 U.S.C. § 3553(a) support the sentence. Id.

      Under § 3553(a)(2), the district court must impose a sentence that is

sufficient, but not greater than necessary, to: (1) reflect the seriousness of the

offense, (2) promote respect for the law, (3) provide just punishment for the

offense, (4) deter criminal conduct, and (5) protect the public from the defendant’s

future criminal conduct. The court must also consider the criminal history and

characteristics of the defendant. Id. § 3553(a)(1). However, the district court need

not specifically address every mitigating factor raised by the defendant for the

sentence to be substantively reasonable, see United States v. Snipes, 611 F.3d 855,

873 (11th Cir. 2010), and a court’s refusal to grant a downward variance alone

does not demonstrate that the district court failed to afford consideration to

mitigating factors. United States v. Lebowitz, 676 F.3d 1000, 1016 (11th Cir.

2012).

      The weight given to any specific § 3553(a) factor is left to the district court’s

sound judgment. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). A

district court abuses its discretion by: (1) failing to consider relevant factors that

were due significant weight; (2) giving an improper or irrelevant factor substantial

weight; or (3) committing a clear error of judgment by balancing proper factors

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unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc).

         We ordinarily expect a sentence within the guideline range to be reasonable,

and the defendant bears the burden of showing otherwise. United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). A sentence well below the

statutory maximum penalty is another indicator of reasonableness. See id. Only

after giving full deference to the district judge and determining that the sentence

imposed was truly unreasonable will we set aside a sentence. Irey, 612 F.3d at

1191.

         Here, the District Court did not abuse its discretion by imposing a 37-month

sentence for the offense of armed bank robbery. The record indicates that the

District Court considered evidence of mitigating factors presented by Alston.

Specifically, the Court considered his age, lack of criminal history, and acceptance

of responsibility. Additionally, during the sentencing hearing, the District Court

heard testimony that around the time of the offense, Alston was addicted to

cannabis, pharmaceuticals, and cocaine, and involved with the “wrong crowd.”

The Court heard that before that time period, he had graduated high school, been a

caretaker for his two younger sisters, and had a steady job at Home Depot, an

apartment, and a car. In calculating the proper sentence, the Court considered the

seriousness of the offense, including the fact that Alston pointed a gun at a bank

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teller and then fled, leading police on a high speed chase. On balance, the Court

concluded that Alston deserved a sentence at the bottom of his guidelines range,

but chose not to grant a downward variance from the range.

        Alston has not met his burden of showing that the District Court abused its

discretion in imposing this sentence. Gonzalez, 550 F.3d at 1324. The District

Court imposed a sentence on Count One that was within Alston’s guidelines range

and was significantly below the statutory maximum of 300 months for armed bank

robbery, two indicia of reasonableness. See id. The Court heard and considered

the mitigating evidence, as discussed above, but determined any mitigating

circumstances were overshadowed by the seriousness of the offense and no

downward variance was warranted. We cannot conclude that the District Court, in

its discretion, arrived at a sentence that “truly is unreasonable.” Irey, 612 F.3d at

1191.

        Accordingly, Alston has failed to show that his sentence was substantively

unreasonable. We affirm the 37-month sentence on Count One imposed by the

District Court.

        AFFIRMED.




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