           Case: 12-16404    Date Filed: 09/18/2013   Page: 1 of 5




                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16404
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cr-20201-JAL-1



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

CEDRIC JAY HALL,

                                                      Defendant-Appellant.

                      ________________________

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

                            (September 18, 2013)

Before WILSON, PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Cedric Jay Hall appeals his sentence of imprisonment based on his

convictions of interfering with commerce by robbery, 18 U.S.C. § 1951(a), and

possession of a firearm in furtherance of a crime of violence, id. § 924(c)(1)(A).

Hall argues that the district court plainly erred by sentencing him to a mandatory

minimum sentence of seven years based on a finding by the court, not the jury, that

Hall brandished a firearm during a robbery, id. § 924(c)(1)(A)(ii). We conclude,

based on the recent decision of the Supreme Court in Alleyne v. United States, 570

U.S. ___, 133 S. Ct. 2151 (2013), that the district court plainly erred in sentencing

Hall, but the error did not affect his substantial rights. We affirm.

      The record establishes, without dispute, that Hall brandished a firearm

during a robbery. At trial, three employees present during the robbery of a Radio

Shack in Miami, Florida, identified Hall as the robber and testified that he

displayed a firearm and racked it in their presence before instructing them to open

the cash register and go to the back of the store. During the trial, the jury also

watched a surveillance video, admitted without objection, that depicted a robber,

identified by an employee as Hall, pulling out a firearm and racking it in the store.

The probation officer alleged in his presentence investigation report that, during

the robbery, Hall removed a black semi-automatic pistol, racked the slide back and

told one of the employees to open the cash register. The report recommended a

sentencing guideline range for Hall’s firearm offense of seven years of


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imprisonment, which is the statutory minimum for brandishing a firearm during a

crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). Hall offered no factual or legal

objections to the presentence investigation report. The district court adopted the

factual findings and guideline calculations in the report.

      Hall argues that, in the light of the recent decision in Alleyne, the district

court erred by not submitting the question whether he brandished the firearm to the

jury. When a defendant fails to object to allegations of fact in a presentence

investigation report, the defendant admits those facts for purposes of sentencing,

and “[a] sentencing court’s findings of fact may be based on undisputed statements

in the [report].” United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006).

And when a defendant fails to object to a finding by the district court at sentencing,

we review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005). To establish plain error, a defendant must show (1) an error (2) that is

plain and (3) that affects his substantial rights. Id. If all three conditions are met,

we may exercise our discretion to notice a forfeited error, but only if “the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,

2362–63 (2000), 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


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doubt.” The Court later clarified that facts guiding judicial discretion below a

statutory maximum sentence need not be submitted to a jury. Harris v. United

States, 536 U.S. 545, 565, 122 S. Ct. 2406, 2418 (2002). But in Alleyne, the Court

overruled its decision in Harris and held that “facts that increase mandatory

minimum sentences must be submitted to the jury.” 570 U.S. at ___, 133 S. Ct. at

2163 (concluding that a jury must find, beyond a reasonable doubt, that the

defendant brandished a firearm during a crime of violence). Notably, in Alleyne,

the defendant objected to the recommendation in the presentence investigation

report of a mandatory minimum sentence of seven years and argued that the jury

had not found that he had brandished a firearm.

      Based on the decision in Alleyne, the district court committed plain error by

not submitting to the jury the question whether Hall brandished a firearm during

the robbery, but the error does not require reversal because Hall’s substantial rights

were unaffected. Rodriguez, 398 F.3d at 1298. Three witnesses at trial identified

Hall as the robber, and they testified that he displayed a firearm and racked it in

their presence. The jury also viewed a surveillance video from the night of the

robbery, which depicted Hall pulling out a firearm and racking it in the store. And

Hall made no factual or legal objections to the presentence investigation report,

which stated that he removed a black semi-automatic pistol and racked the slide

back in the store and recommended a sentence of seven years of imprisonment as


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the statutory mandatory minimum, 18 U.S.C. § 924(c)(1)(A)(ii). In contrast with

the defendant in Alleyne, Hall conceded at sentencing that he had brandished a

firearm during the robbery. We affirm his sentence.

      AFFIRMED.




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