                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4487


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JANSON LAMARK STRAYHORN,

                Defendant – Appellant.



                              No. 12-4495


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JIMMY JAY STRAYHORN, JR.,

                Defendant – Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00368-CCE-2; 1:11-cr-00368-CCE-1)


Argued:   December 11, 2013             Decided:   February 26, 2014


Before GREGORY, DAVIS, and WYNN, Circuit Judges.
Affirmed in part, reversed in part, and vacated and remanded for
resentencing by published opinion.        Judge Wynn wrote the
opinion, in which Judge Gregory and Judge Davis joined.


ARGUED: James B. Craven, III, Durham, North Carolina, for
Appellants. Andrew Charles Cochran, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.     ON BRIEF:
Tony E. Rollman, Enka, North Carolina, for Appellant Jimmy Jay
Strayhorn, Jr.   Ripley Rand, United States Attorney, Graham T.
Green, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.




                                2
WYNN, Circuit Judge:

     This appeal arises from the convictions of Janson Strayhorn

and Jimmy Strayhorn for the robbery of P & S Coins and a second

planned robbery of All American Coins.

     Regarding Janson Strayhorn’s appeal, we conclude that there

was insufficient evidence to convict Janson Strayhorn of robbing

P & S Coins.         Thus, we hold that the district court erred by

denying his    motion     for     judgment     of   acquittal   on   the   charges

related   to   the    P   &   S   Coins    robbery.      The    government   did,

however, present sufficient evidence to sustain the conspiracy

and firearm convictions against Janson Strayhorn relating to the

All American Coins robbery.

     Regarding Jimmy Strayhorn’s appeal, we remand his case for

resentencing on the brandishing charge arising from the P & S

Coins robbery because the district court failed to instruct the

jurors that to convict Jimmy Strayhorn of that offense, they

needed to find that he had brandished a gun.



                                          I.

     In August 2010, two men robbed P & S Coins, a store in

north Davidson County, North Carolina.               The robbers arrived in a

cream-colored Cadillac.           One of the robbers pulled a revolver on

Samuel Sims, the store’s owner, while the other robber bound

Sims’s hands with zip ties and his legs with duct tape.                       The

                                          3
robbers took coins from a safe and a Colt Peacemaker revolver

from a display case and then left the store.

      Starting on October 24, 2010, Jimmy Strayhorn, who had been

detained in Guilford County Jail as a suspect for other crimes,

placed several phone calls to his girlfriend, Thania Woodcock.

The   police      listened    to    those       calls    and     learned    that    Jimmy

Strayhorn       had   asked   his   brother      Janson        Strayhorn    to   rob    All

American Coins and Collectibles in Butner, North Carolina to

raise enough money for Jimmy Strayhorn to post his bond.                            These

calls    were    forwarded     to   the   Butner        police    and    officers      were

dispatched to watch All American Coins.                   Butner police knew from

the   recorded        phone   calls   that       the    robbers     would    likely      be

driving Woodcock’s Cadillac.

      On October 29, 2010, Captain Donald Slaughter, a Butner

police    officer,      was   patrolling        the     area    around     All   American

Coins in an unmarked police car when he noticed a white Cadillac

driving slowly past the store.                   When the Cadillac neared the

unmarked police car, the Cadillac’s occupants “slumped down[,]”

and the driver “place[d] his hand up over his eyes . . . to

conceal his identity . . . .”             J.A. 146-47.

      Slaughter followed the Cadillac, which sped up and made

several turns.         Believing that the Cadillac’s driver was trying

to elude him, Slaughter called in the license plate, confirmed

that he was following the targeted Cadillac, and stopped and

                                            4
searched the car along with Officer Knutson, who had been called

for back-up assistance.                        The officers discovered that Janson

Strayhorn              was    the    Cadillac’s          driver,        Kenneth       Jones       was   the

passenger, and the vehicle was registered to Woodcock, Jimmy

Strayhorn’s girlfriend.                      Upon searching the Cadillac, the police

found         in   the       back     seat     a    book       bag   and    a   laptop        bag       each

containing             a     revolver.         One       of    the   revolvers         was    the       Colt

Peacemaker stolen from P & S Coins.

          After arresting Janson Strayhorn and Jones, the officers

obtained           a    search       warrant       for       Woodcock’s     house.         There,        the

police found the same type of black zip tie as those used in the

P    &    S    Coins         robbery,     a    coin          taken   from   P     &    S   Coins,        and

ammunition.                It is undisputed that Jimmy Strayhorn resided, at

least occasionally, at the Woodcock residence but that Janson

Strayhorn did not.

         As a result of these incidents, Defendants Janson Strayhorn

and Jimmy Strayhorn were charged with one count each of: robbery

in       violation           of     the   Hobbs      Act,       which      prohibits         actual      or

attempted robbery or extortion affecting interstate or foreign

commerce           (Count         One);   using,         by     brandishing,          a    firearm       in

relation           to      that     robbery        (Count       Two);    conspiracy          to    commit




                                                         5
robbery in violation of the Hobbs Act (Count Three); and using a

firearm in relation to the conspiracy (Count Four).1

     At the ensuing joint trial, various witnesses testified,

including Sims from P & S Coins, who identified Jimmy Strayhorn

as one of the robbers.       Notably, Sims did not identify Janson

Strayhorn.    Jimmy Strayhorn’s DNA was also found on the plastic

zip ties left in P & S Coins.

     Additionally, a fingerprint expert testified that a partial

fingerprint on the duct tape used to bind Sims’s feet belonged

to Janson Strayhorn.      But the expert testified that he could not

determine when that fingerprint had been imprinted on the tape

and that such a print could remain on the tape for as long as a

year.

     Defendants unsuccessfully moved for a judgment of acquittal

from the jury verdicts of guilty on all counts; they now appeal

to this Court.



                                     II.

     With his lead argument, Janson Strayhorn contends that the

government failed to adduce sufficient evidence to support his

convictions   involving    the   P   &       S   Coins   robbery   and   that   the

     1
        Janson Strayhorn was also charged with two firearm
offenses, Counts Five and Six. But his appellate brief contains
no argument as to Count Five, and Count Six was dismissed at
trial and is thus not before us.


                                         6
district      court      erred    in       denying      his   motion    for   judgment     of

acquittal.         We review the denial of his motion for judgment of

acquittal de novo.            United States v. Hickman, 626 F.3d 756, 762

(4th Cir. 2010).           Specifically, “[w]e review the sufficiency of

the    evidence     to    support      a     conviction       by    determining     whether

there is substantial evidence in the record, when viewed in the

light     most      favorable         to     the       government,     to     support     the

conviction.”          United States v. Jaensch, 665 F.3d 83, 93 (4th

Cir. 2011) (quotation marks omitted).                         “‘[S]ubstantial evidence

is evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.’”                      Id. (alteration in original)

(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc)).

        “In   determining        whether       the      evidence     was    sufficient     to

support a conviction, a reviewing court must determine whether

‘any    rational      trier      of    fact    could      have      found   the   essential

elements      of   the    crime       beyond       a   reasonable      doubt.’”      United

States v. Madrigal–Valadez, 561 F.3d 370, 374 (4th Cir. 2009)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).                                As we

have emphasized, in sufficiency challenges our focus “is the

complete picture that the evidence presents.”                              Burgos, 94 F.3d

at 863.       We thus consider the evidence “in cumulative context”

rather than “in a piecemeal fashion[.]”                       Id.

                                               7
         Defendants were convicted of two counts relating to P & S

Coins.      The first was robbery in violation of the Hobbs Act.                                        “A

Hobbs     Act     violation         requires        proof      of     two    elements:       (1)       the

underlying        robbery          or    extortion        crime,      and    (2)   an    effect         on

interstate commerce.”                    United States v. Williams, 342 F.3d 350,

353 (4th Cir. 2003).                      The Hobbs Act defines robbery as “the

unlawful        taking       or     obtaining        of      personal       property     from          the

person      .    .     .    by     means       of   actual      or       threatened     force,          or

violence, or fear of injury, . . . to his person or property . .

.   at    the     time       of    the     taking       or     obtaining.”         18    U.S.C.          §

1951(b)(1).

         The second P & S Coins-related count was for using, by

brandishing, a firearm in violation of 18 U.S.C. § 924(c)(1).

To successfully prosecute that crime, the government “must show

two elements: (1) the defendant used or carried a firearm, and

(2)   the       defendant          did    so    during       and    in    relation      to    a    drug

trafficking offense or crime of violence.”                                    United States v.

Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).

         We must first determine whether the government presented

sufficient evidence to support Janson Strayhorn’s convictions on

the two P & S Coins-related charges.                                 The centerpiece of the

government’s           case        against       Janson        Strayhorn       consisted          of     a

partial     fingerprint             on    an     easily      movable        object,     i.e.,      duct

tape.           This       Court    has        spoken     on    the      sufficiency         of    such

                                                    8
fingerprint evidence before, and a close review of our precedent

is instructive.

      In   United      States      v.     Corso,    we     reversed     a     burglary

conviction because we found that the government’s evidence was

insufficient.       439 F.2d 956, 957 (4th Cir. 1971) (per curiam).

In that case, the evidence included the defendant’s fingerprint

on a matchbook cover that had been used by thieves to jam a

lock, screwdrivers, and expert testimony that marks found on the

door where the matchbook had been used had been made by one of

the   screwdrivers.          Id.        Witnesses   also        testified   that    the

defendant made credit purchases with cash down payments soon

after the burglary, and evidence indicated that more than a year

before the burglary, the defendant had worked laying tile in a

nearby building.       Id.      We held that the defendant’s fingerprint

on the matchbook cover was insufficient to support a burglary

conviction.

      In reaching that conclusion, we noted that “[t]he probative

value of an accused’s fingerprints upon a readily movable object

is highly questionable, unless it can be shown that such prints

could   have   been    impressed        only   during     the    commission    of   the

crime.”    Id.    Such timing evidence was lacking.                   Regarding the

rest of the government’s evidence, we explained that some was

without    probative     value      and     that    the    rest     constituted     an

“accumulation     of    purely      circumstantial          evidence”       that    was

                                           9
insufficient “to permit the jury to find the defendant guilty

beyond a reasonable doubt.”             Id.

       Similarly, in United States v. Van Fossen, we held that

evidence of fingerprints on two photographic negatives and one

engraving plate could not sustain the defendant’s counterfeiting

conviction       because    it    was     not      supported      by    other       evidence

indicating that the fingerprints were imprinted at the time of a

crime.        460 F.2d 38, 40-41 (4th Cir. 1972).                     We focused on the

fact that, “[t]o warrant conviction the trier of fact must be

able     to    reasonably       infer   from       the      circumstances          that    the

fingerprints       were     impressed         at      the      time    the        crime    was

committed.”       Id. at 41.        But the government had failed to show

when     the    defendant’s       fingerprints         were      imprinted         on     these

moveable objects.          “For this reason the prosecution rest[ed] on

conjecture       and   suspicion[,]”       and      “the       jury    could      only    have

guessed” that the imprinting occurred during the commission of

the crime.       Id.

       By     contrast,    in    United    States        v.    Harris,       we    upheld    a

conviction where the defendant’s fingerprints were on a note

which read “‘this is a holdup’” that was handed to a teller

during a bank robbery.            530 F.2d 576, 579 (4th Cir. 1976) (per

curiam).         Significantly,         however,         the    government         presented

additional incriminating evidence, namely, the defendant’s own

“detailed       confession[,]”      which       was    admitted        even    though      the

                                           10
defendant repudiated the confession before the trial.                                Id.     In

that context, we found “substantial evidence to permit the jury

to   find       a     guilty    verdict    beyond      a     reasonable     doubt.”         Id.

Similarly, in United States v. Anderson, we sustained several

bank robbery convictions supported, in part, by fingerprints on

movable objects.               611 F.2d 504, 508-09 (4th Cir. 1979).2                    As in

Harris,         however,       “additional      substantial         evidence”     supported

those convictions.              Id. at 509.

      Finally, in Burgos, this Court sustained the defendant’s

drug convictions supported in part by a fingerprint on a plastic

bag containing cocaine base.                 94 F.3d at 874-75.             Crucially, we

noted      that       the    fingerprint     “was      not    the    only    incriminating

evidence         establishing       Burgos’s         guilt;     rather,     there     was    an

abundance of evidence establishing that Burgos was guilty . . .

.”        Id.         That     evidence   included         “conclusive”      incriminating

testimony that, for example, the defendant “knew” that his co-

conspirators had crack cocaine on them and that the plan was “to

sell the dope” at a North Carolina university.                          Id. at 865, 875.

      Viewing          these     cases    holistically,          they    reveal      that    in

challenges          to      convictions    involving         fingerprints       on    movable

objects,         in      the    absence    of        evidence       regarding     when      the

      2
       We reversed in part as to one robbery, however, because
“no   evidence   was   adduced  connecting   either  appellant
specifically with the crime charged.”    Id. at 509 (emphasis
omitted).


                                                11
fingerprints were made, the government must marshal sufficient

additional    incriminating        evidence          so    as    to   allow    a     rational

juror to find guilt beyond a reasonable doubt.                               Although the

government may meet this burden with circumstantial evidence,

that evidence must be sufficiently incriminating to support the

conviction.

     Here,     it   is    undisputed        that          the    fingerprint         evidence

against Janson Strayhorn as to Counts One and Two consists of

one partial fingerprint on the duct tape used in the P & S Coins

robbery.     The duct tape is, without question, an easily movable

object.     And the government’s expert conceded that he had no way

to determine when Janson Strayhorn’s fingerprint was imprinted

on the tape and that the fingerprint could have been impressed

even a year earlier.             The probative value of the fingerprint

evidence here is thus “highly questionable[.]”                          Corso, 439 F.2d

at 957.

     In     addition      to     the    partial            fingerprint,        the      “most

significant”    incriminating          evidence       the       government     offered     is

Janson     Strayhorn’s         “possession”          of     the       Colt     Peacemaker.

Appellee’s Br. at 28.           That gun had been taken during the P & S

Coins     robbery   and    was     found        in    the       Cadillac      that     Janson

Strayhorn was driving when Butner police stopped him near All

American Coins.



                                           12
       In    general,        unexplained         possession      of        recently     stolen

property may permit an inference of theft.                              See e.g., United

States v. Long, 538 F.2d 580, 581 (4th Cir. 1976).                                  In United

States v. Newsome, this Court looked to the specific facts and

context in determining that such an inference was appropriate.

322 F.3d 328, 333 (4th Cir. 2003).                      Regarding timing, we found

that    “there      was    evidence       closely   linking”       the      timing     of   the

theft of the trees and subsequent sale of the stolen timber to

nearby mills over a maximum two-week period.                                Id. (“Evidence

showed      that     the    trees    discovered      to   have     been      cut    down    and

stolen . . . around Memorial Day were sold by the defendants to

the    mills    on    May    24,    May    30,    and   June   6      in    close     temporal

proximity      to     their    thefts.”).           Further,       we      noted    that    the

property       at    issue—cherry         tree     logs   illegally           removed       from

national forests—was “huge and heavy” and “could [not] easily be

moved and transferred from person to person.”                         Id.

       Engaging in a similar fact-specific inquiry here, we must

conclude that the gun was no longer recently stolen by the time

Butner police stopped Janson Strayhorn.                        Regarding timing, two

months had passed between the P & S Coins robbery and Janson

Strayhorn’s         arrest    near    All    American     Coins.            The    government

introduced no evidence that Janson Strayhorn possessed the Colt

until the days leading up to the planned robbery of All American

Coins.      In fact, Jones testified that the Colt, along with other

                                             13
guns, was at Woodcock’s house and Jones picked it up from her

house to give to Janson Strayhorn in the days before the planned

All American Coins robbery after Jimmy Strayhorn was arrested.

Further,   the   Colt      was    small,    light,       and   easily    transferable

relative to the “huge and heavy” logs at issue in Newsome.                       322

F.3d at 333.     In addition, Janson Strayhorn’s possession of the

gun, assuming arguendo that he did knowingly possess it, was not

unexplained.     Janson Strayhorn’s brother Jimmy, who participated

in the P & S Coins robbery, asked Janson Strayhorn to commit the

All American Coins robbery to help him post bail.                          To do so,

Janson Strayhorn drove Jimmy Strayhorn’s girlfriend’s car, where

the Colt was stored in a bag in the back seat.                           In light of

these facts taken together, Janson Strayhorn’s possession of the

Colt Peacemaker did not properly allow for an inference of his

having participated in its theft from P & S Coins.

     Moving beyond the fingerprint and the Colt, the government

submits that Janson Strayhorn’s conspiring with his brother to

commit the second robbery is probative of his guilt on the first

robbery.       But    this       is   little     more     than   an     impermissible

propensity argument, cf. Fed. R. Evid. 404(b), and certainly

cannot serve to sustain Janson Strayhorn’s P & S Coins-related

convictions.

     Finally,        the   government           argues    that    the     fact   that

Woodcock’s vehicle was used in both the P & S Coins robbery and

                                           14
the All American Coins incident and that the zip tie found in

Woodcock’s home was the same type as that used in the P & S

Coins robbery somehow demonstrate Janson Strayhorn’s guilt.                         We

disagree.        Although     the   car    and     zip    tie   might     demonstrate

Woodcock’s involvement (or that of Jimmy Strayhorn, who was at

least an occasional occupant of the Woodcock residence), this

evidence    is    not   helpful     in    answering       the   question    presented

here: whether substantial evidence linked Janson Strayhorn to

the commission of the P & S Coins robbery.

       In sum, a fingerprint on an easily movable object with no

evidence of when it was imprinted is sufficient to support a

conviction       only     when      it    is     accompanied        by     additional

incriminating evidence which would allow a rational juror to

find   guilt     beyond   a   reasonable        doubt.      Here,   the    government

failed to adduce such evidence.                   Accordingly, we reverse the

district     court’s      denial     of    Janson        Strayhorn’s      motion   for

judgment of acquittal on Counts One and Two.3


                                          III.

       Janson Strayhorn also argues that the government failed to

provide sufficient evidence to support his convictions on Counts

       3
       Because we reverse the denial of Janson Strayhorn’s motion
for judgment of acquittal on the P & S Coins-related counts, we
need not address his argument that the district court improperly
excluded Kenneth Jones’s exculpatory testimony as to the P & S
Coins robbery.


                                           15
Three    and   Four       involving   the    conspiracy    to   rob   All   American

Coins.    Again, “[w]e review the sufficiency of the evidence to

support a conviction by determining whether there is substantial

evidence in the record, when viewed in the light most favorable

to the government, to support the conviction.”                        Jaensch, 665

F.3d at 93 (quotation marks omitted).                 And substantial evidence

is “evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt    beyond       a    reasonable       doubt.”       Id.   (quotation     marks

omitted).

     To prove a Hobbs Act conspiracy, the government must prove

that the defendant agreed with at least one other person to

commit acts that would satisfy the following three elements:

     (1) that the defendant coerced the victim to part with
     property; (2) that the coercion occurred through the
     wrongful use of actual or threatened force, violence
     or fear or under color of official right; and (3) that
     the coercion occurred in such a way as to affect
     adversely interstate commerce.

United States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990).

         To prove the firearm charge in violation of 18 U.S.C. §

924(c)(1), the government must show that the defendant used or

carried a firearm and that he did so during and in relation to a

drug trafficking crime or a crime of violence.                        Mitchell, 104

F.3d at 652.




                                            16
       Janson Strayhorn argues that he intended to sell the Colt

Peacemaker rather than rob All American Coins.                              Even assuming

that to be true, substantial record evidence supports Janson

Strayhorn’s All American Coins-related convictions.

       Specifically, recorded telephone calls that Jimmy Strayhorn

placed     from       the    Guilford      County      Jail     reflect      that    Janson

Strayhorn       wanted       to   “get    rid     of   that    gun”    but    that    Jimmy

Strayhorn suggested Janson Strayhorn “use it” instead.                                Supp.

J.A.     4.       Defendants       then     discussed         how    much    money    Jimmy

Strayhorn needed to make bail, and Jimmy Strayhorn described a

“move” that would enable Janson Strayhorn to raise all of the

money.        Supp. J.A. 5-7.            Although Janson Strayhorn stated that

“[his] face ain’t going to be seen” and that he intended to go

only to “show[] them where it’s at[,]” he nevertheless plainly

agreed to do the “move” the next day: the morning of October 28,

2010.     Supp. J.A. 7-8.           The plans failed on October 28 because

Jones was unavailable.              On October 29, Defendants and Woodcock

discussed       the    robbery     again     on    a   recorded       call,    and    Jimmy

Strayhorn described the plan in detail: Janson Strayhorn would

get Woodcock’s car and pick up Jones, they would “make that

move[,]”       and    then    Janson      Strayhorn     would       return    the    car   to

Woodcock.        Supp. J.A. 25.            The transcript of the phone calls

leaves little, if any, doubt that Janson Strayhorn agreed to the

plan, even if he did so reluctantly.

                                             17
       The government also proffered the transcript of a phone

call that Janson Strayhorn placed to Woodcock after he had been

arrested.     That call reflects Janson Strayhorn’s anger at having

agreed to the plan.          Janson Strayhorn further stated that he was

“thankful we ain’t caught in no act of doing nothing[,]” but

that they were stopped before the robbery commenced.                          Supp. J.A.

37-38.

       In addition to the recorded calls, the evidence reflected

that    Janson     Strayhorn       took    steps    to   carry    out    the    robbery.

First, Jones testified that Janson Strayhorn drove him to Butner

using    Woodcock’s       car.      Second,      Butner   police     stopped      Janson

Strayhorn     after       seeing     him    drive    Woodcock’s         car    past   All

American Coins with Jones as a passenger.                        Third, a search of

the car turned up two guns.

       In   sum,    the    record     contains      substantial     evidence,         when

viewed in the light most favorable to the government, to support

Janson Strayhorn’s All American Coins-related convictions.                            The

district court did not, therefore, err in denying his motion for

judgment of acquittal as to Counts Three and Four.




                                            18
                                            IV.

        Finally, Jimmy Strayhorn appeals his sentence as to his

Section 924 offense.4              We hold, as the government conceded, that

Jimmy       Strayhorn’s     case     must   be    remanded      for   resentencing       in

light of Alleyne v. United States, 133 S. Ct. 2151 (2013).                               In

Alleyne, the Supreme Court overruled prior case law and held

that        “any   fact    that    increases      the   mandatory      minimum    is     an

‘element’ that must be submitted to the jury.”                         Alleyne, 133 S.

Ct. at 2155, 2158-63.               In Alleyne, as here, the defendant was

convicted of robbery affecting commerce and use of a firearm

during and in relation to a crime of violence under Section 924.

The Supreme Court noted that the district court “imposed [a] 7–

year        mandatory     minimum    sentence      based   on    its    finding     by    a

preponderance of evidence that [a] firearm was ‘brandished.’”

Id. at 2163.         But because the brandishing finding “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.”

Id.          The   Court    thus    vacated      the    defendant’s      sentence      and




        4
       Janson Strayhorn also appealed his sentence relating to
the order of sentencing on multiple Section 924 convictions.
Because we reverse the district court’s denial of Janson
Strayhorn’s motion for judgment of acquittal as to the P & S
Coins-related Section 924 conviction, he now has only one
Section 924 conviction (for which he did not receive a
brandishing enhancement) and his argument is moot.


                                            19
remanded for resentencing in accordance with the jury’s verdict,

i.e., without the increased prison time for brandishing.

       Although       the     Supreme        Court     decided        Alleyne     after      the

conclusion of Jimmy Strayhorn’s trial and sentencing, Alleyne

nevertheless        applies       because       this    appeal        was   still      pending.

Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule

for    the    conduct       of    criminal      prosecutions           is   to    be    applied

retroactively to all cases, state or federal, pending on direct

review or not yet final, with no exception for cases in which

the new rule constitutes a ‘clear break’ with the past.”).

       In    this     case,      Count    Two        charged     Jimmy      Strayhorn       with

“knowingly carry[ing] and us[ing], by brandishing, a firearm”

during the P & S Coins robbery in violation of 18 U.S.C. §

924(c)(1)(A)(ii).                The     district       court’s        jury      instructions

reflected that brandishing was one method of “using” the firearm

rather than an element of the charged offense.                                See J.A. 683

(“To   use    a     firearm      means    to    brandish        it,    to   point      it   at    a

person, to display it visibly, to fire it, to specifically refer

to or speak about it, or otherwise to actively employ the gun

during or in relation to the robbery.”).                               However, the jury

needed to find that the defendants brandished a firearm as an

element      of   the   offense        for     the     higher    mandatory        minimum        to

apply.       Because the record reflects that the jury made no such

brandishing       finding        here,    the    enhanced       mandatory        minimum     for

                                                20
brandishing must fall as it did in Alleyne.                 Accordingly, we

vacate Jimmy Strayhorn’s sentence on Count Two and remand for

resentencing.

                                     V.

     For the foregoing reasons, we reverse the judgment of the

district court as to Janson Strayhorn’s convictions on Counts

One and Two, affirm Janson Strayhorn’s convictions on Counts

Three   and   Four,   and   vacate   the   sentence   and    remand   Janson

Strayhorn’s case for resentencing in light of our disposition on

his motion for judgment of acquittal.           Further, we vacate and

remand Jimmy Strayhorn’s case for resentencing in light of the

Alleyne error.

                                  AFFIRMED IN PART, REVERSED IN PART,
                            AND VACATED AND REMANDED FOR RESENTENCING




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