                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             JULY 18, 2007
                              No. 06-15904                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 05-00128-CR-WS

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                   versus

ALEXANDER LASHAWN BOHANNON,

                                                    Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                               (July 18, 2007)

Before DUBINA, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Appellant Alexander Lashawn Bohannon appeals his convictions for
carjacking, in violation of 18 U.S.C. § 2119, and using a firearm during the

commission of a crime of violence, in violation of 18 U.S.C. § 924(c), and his

resulting consecutive life sentences. Bohannon argues on appeal that, in light of

Holloway v. United States, 526 U.S. 1, 119 S. Ct. 966, 143 L. Ed. 2d 1 (1999),

there was insufficient evidence to allow a reasonable jury to conclude that he

intended to take the car when the victim was shot, and that taking the victim’s car

was a mere afterthought. Bohannon therefore argues also that the evidence was

insufficient to convict him of carjacking and using a firearm during a carjacking.

      Bohannon next argues that his consecutive sentences of life imprisonment

are unreasonable. Specifically, he argues that his sentence is unreasonable because

the second life sentence amounts to a variance that is well above the 25-year

sentence set forth in the guidelines for violating § 924(c).

      We review a challenge to the sufficiency of the evidence de novo. United

States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). When reviewing the

sufficiency of the evidence, the inquiry is “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In so

doing, we resolve all reasonable inferences and credibility choices in favor of the



                                           2
jury’s verdict. United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000).

Moreover, as long as the testimony is not incredible as a matter of law, we must

accept the jury’s conclusions. United States v. Calderon, 127 F.3d 1314, 1325

(11th Cir. 1997).

         “In order to be convicted of carjacking under 18 U.S.C. § 2119, the

government must prove that the defendant (1) with intent to cause death or serious

bodily harm (2) took a motor vehicle (3) that had been transported, shipped or

received in interstate or foreign commerce (4) from the person or presence of

another (5) by force and violence or intimidation.” United States v. Diaz, 248 F.3d

1065, 1096 (11th Cir. 2001). The required mens rea element for carjacking was

later clarified by the Supreme Court in Holloway v. United States, 526 U.S. 1, 119

S. Ct. 966, 143 L. Ed. 2d 1 (1999): “The intent requirement of [18 U.S.C. §] 2119

is satisfied when the Government proves that at the moment the defendant

demanded or took control over the driver’s automobile[,] the defendant possessed

the intent to seriously harm or kill the driver if necessary to steal the car[.]” Id. at

12, 119 S. Ct. at 972. “The defendant’s intent is to be judged objectively from the

visible conduct of the actor and what one in the position of the victim might

reasonably conclude.” United States v. Fulford, 267 F.3d 1241, 1244 (11th Cir.

2001).



                                            3
      We have also held that “any defendant who possesses a firearm within the

meaning of section 2119 necessarily uses or carries it as defined in § 924(c)(1).”

United States v. Moore, 43 F.3d 568, 572 (11th Cir. 1994) (internal quotation and

citation omitted). Therefore, if sufficient evidence supports a conviction for

carjacking, it necessarily follows that sufficient evidence supports a conviction for

possessing a firearm. See id.

      Here, the record demonstrates that there was sufficient evidence for a

reasonable jury to conclude that Bohannon intended to harm the victim if necessary

to steal his car. Although Bohannon argues that the victim was not in the car, the

testimony of two witnesses placed the victim in or near the car when the struggle

between the victim and Bohannon began. The jury could have reasonably inferred

that the victim was in the car when the struggle began. See Rodriguez, 218 F.3d at

1244. Bohannon’s argument that he essentially intended to rob the victim, and that

he took the car as a mere afterthought, fails. First, even if a robbery had been the

primary objective, it does not automatically render the taking of the car as an

afterthought. The car could have been an integral part of the robbery as a

necessary means of escape. See Diaz, 248 F.3d at 1096 (noting that gaining

control of the victim’s car was an essential element in an extortion scheme and not

a mere afterthought). Second, Bohannon’s previous conviction for carjacking that



                                           4
was introduced at trial also supports the finding of intent. Third, Bohannon’s

suggestion that the victim’s previous drug conviction supported the conclusion that

Bohannon’s intent was to rob the victim for his drug proceeds is without merit

because Bohannon presented no evidence that the victim had possession of any

drugs or cash at the time of the shooting. Fourth, Bohannon’s reliance on a

witness’s testimony that she anticipated a robbery is misplaced because the witness

admitted that she could not hear the verbal exchange between Bohannon and the

victim, and only saw them fighting. The witness’s characterization of the incident

as a robbery is not dispositive. Fifth, the victim’s statement to Bohannon that he

did not have anything supports the conclusion that the victim did not realize

Bohannon wanted the car, but it does not necessitate the conclusion that Bohannon

merely intended to rob the victim, as opposed to harming him in order to take the

car. Finally, quickly disposing of the car does nothing to negate Bohannon’s intent

to harm the victim, because the jury could have inferred that it showed Bohannon

realized he needed to seek medical attention and create an alibi. See Rodriguez,

218 F.3d at 1244. Based on the foregoing, a rational juror could have found

beyond a reasonable doubt that Bohannon intended to harm the victim in order to

take the car. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

      Moreover, since there is sufficient evidence to support Bohannon’s



                                          5
conviction for carjacking, it necessarily follows that there is sufficient evidence to

support Bohannon’s conviction for using a firearm during a carjacking. See

Moore, 43 F.3d at 572.

      The Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125

S. Ct. 738, 160 L. Ed. 2d 621 (2005), requires us to review final sentences for

reasonableness in light of the factors listed in 18 U.S.C. § 3553(a). Id. at 261, 125

S. Ct. at 765-66. When evaluating the reasonableness of a sentence, we consider

the factors outlined in 18 U.S.C. § 3553(a) and the district court’s reasons for

imposing the particular sentence. United States v. Williams, 456 F.3d 1353, 1360-

61 (11th Cir. 2006), petition for cert. filed, (U.S. Oct. 19, 2006) (No. 06-7352).

      Unreasonableness may be procedural or substantive. United States v. Hunt,

459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence may be procedurally

unreasonable if “it is the product of a procedure that does not follow Booker’s

requirements, regardless of the actual sentence.” Id. Moreover, a sentence may be

procedurally unreasonable if the district court failed to consider the relevant

§ 3553(a) factors, which include:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of

                                        6
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The district court is

not required to discuss each § 3553(a) factor. Id. “[A]n acknowledgment by the

district court that it has considered the defendant’s arguments and the factors in

section 3553(a) is sufficient under Booker.” Id.

      A sentence “may be substantively unreasonable, regardless of the procedure

used.” Hunt, 459 F.3d at 1182 n.3. “When reviewing the length of a sentence for

reasonableness, we will remand for resentencing if we are left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” Williams, 456 F.3d at

1363. “[T]here is a range of reasonable sentences from which the district court

may choose” and the burden of establishing that the sentence is unreasonable in

light of the record and the § 3553(a) factors lies with the party challenging the

sentence. Talley, 431 F.3d at 788. Although a sentence within the guideline range

is not per se reasonable, “when the district court imposes a sentence within the

advisory Guidelines range, we ordinarily will expect that choice to be a reasonable

one.” Id. at 787-88. “[A]fter a district court correctly calculates the Guidelines

                                           7
range . . . it may consider imposing a more severe or more lenient sentence.”

United States v. McVay, 447 F.3d 1348, 1353 (11th Cir. 2006).

         Additionally, “[t]he weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court.” Williams, 456 F.3d

at 1363. We will not substitute our judgment in weighing the relevant factors. Id.

“[The] district court may determine, on a case-by-case basis, the weight to give the

Guidelines, so long as that determination is made with reference to the remaining

section 3553(a) factors that the court must also consider in calculating the

defendant’s sentence.” United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir.

2006).

         An extraordinary departure from the Guidelines range, based on the

§ 3553(a) factors, must be supported by extraordinary circumstances. McVay, 447

F.3d at 1357. The maximum allowable sentence is the sentence established by

statute, not the sentence established by the sentencing guidelines. See United

States v. Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005) (recognizing that the

statutory maximum sentence, not the guideline sentence, is the maximum sentence

permitted by law).

         It is unclear whether Bohannon challenges his sentence as either

procedurally or substantively unreasonable. Nevertheless, his sentence is both



                                            8
substantively and procedurally reasonable. As for being procedurally reasonable,

the record shows that the district court correctly calculated the guideline range and

adequately and properly considered the § 3553(a) factors. Bohannon does not

dispute that the district court correctly computed the guideline range to be life for

the carjacking, plus a consecutive 25-year sentence for the firearm conviction.

Second, the district court stated that it had considered all of the 3553(a) factors in

determining Bohannon’s sentence. The district court’s statements were sufficient

to show that it had considered the § 3553(a) factors, and the district court was not

required to separately address each § 3553(a) factor. See Talley, 431 F.3d at 786.

Since the district court correctly computed the guidelines range and considered all

the § 3553(a) factors, Bohannon’s sentence is procedurally reasonable.

      Moreover, Bohannon’s consecutive second life sentence is substantively

reasonable because it does not illustrate clear error of judgment in the district

court’s weighing of the § 3553(a) factors. See Williams, 456 F.3d at 1363. The

district court discussed Bohannon’s violent history and noted his previous

conviction of carjacking and his injuring a prison guard to the point the guard was

permanently disabled. The district court accepted Bohannon’s retardation, and it

considered the opinion of Bohannon’s expert that any rehabilitation would be

undone if he returned to his previous environment. The district court noted that it



                                           9
was in a unique position, since it had sat through Bohannon’s two trials for two

separate carjackings. The district court noted also that Bohannon was wanted for a

separate carjacking when he committed the instant carjacking, and that this conduct

showed a continued disrespect for the law. The district court concluded that

Bohannon had an “absolute disregard for human life.” The district court explained

that it had to fashion a sentence that would reflect the seriousness of the offense,

promote respect for the law, provide just punishment, provide adequate deterrence,

and protect the public. The district court concluded that the proper sentence

necessary to protect the public and provide just punishment was two consecutive

life sentences. Bohannon also does not prevail on his argument that the court

failed to give proper weight to his history and characteristics, as we will not

substitute our judgment in weighing the relevant factors. See Williams, 456 F.3d at

1363. Based on the district court’s judgment in weighing of the § 3553(a) factors,

Bohannon’s consecutive second life sentence is substantively reasonable.

      Finally, extraordinary circumstances can merit an extraordinary variance,

and Bohannon’s lengthy and significant violent criminal history merited his second

consecutive life sentence. See McVay, 447 F.3d at 1357.

      For the above-stated reasons, we affirm Bohannon’s convictions and

sentences.



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AFFIRMED.




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