                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4117


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSEPH ALEXANDER CLINTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00208-RJC-DSC-1)


Submitted:   November 22, 2013          Decided:   November 27, 2013


Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Joseph Alexander Clinton was convicted by a jury of

conspiracy to obstruct, delay, and affect commerce in violation

of   18    U.S.C.          § 1951       (2012)      (Count        1);    obstruct,            delay,      and

affect commerce and aiding and abetting the same in violation of

§ 1951 and 18 U.S.C. § 2 (2012) (Count 2); and use, carry, and

discharge of firearm in furtherance of a crime of violence and

aiding      and        abetting            the    same       in   violation           of       18    U.S.C.

§ 924(c)(1)(A)(iii)                   (2012)        &       § 2   (Count           3).          Clinton’s

convictions were based on his participation in the robbery of a

store      and       his       and     his       co-conspirators             flight      from       police.

Clinton was sentenced to sixty-month concurrent sentences for

Counts     1     and       2    and    a     ten-year        consecutive           sentence         for   the

firearm         violation         in       Count     3,      because         the    court       found      at

sentencing that the firearm at issue was discharged.

                On     appeal,          Clinton         only      challenges          his       120-month

mandatory         minimum             consecutive            sentence         for        his        § 924(c)

violation.           Clinton notes that he was only indicted for, and the

jury      was    only          instructed         on,    whether        he    used       or    carried     a

firearm.          Thus,         he    argues,       his      conviction        is     now      erroneous,

based on the Supreme Court’s later opinion in Alleyne v. United

States, 133 S. Ct. 2151 (2013).                             While Clinton concedes that the

facts at trial proved that the pistol at issue was brandished,

and,    thus,        his       maximum       sentence         would     be     seven       years       under

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§ 924(c)(1)(A)(ii),     he     contends      that     his     ten-year     mandatory

sentence, under § 924(c)(1)(A)(iii), for discharging the firearm

was erroneous in light of Alleyne.               For the reasons that follow,

we affirm.

            Defense   counsel    understandably            failed    to   object      to

Clinton’s    ten-year   sentence    on       the     basis    of    Alleyne,     or    a

related    Sixth   Amendment    basis,      as     that    opinion    issued     after

Clinton was sentenced.       Because, however, there was no objection

made on this basis in the district court, Clinton raises the

issue for the first time on appeal and we review the claim for

plain error only.       Fed. R. Crim. P. 52(b).                The Supreme Court

has held that the plain error standard applies even in cases

where the relevant rule of law was not established until after

trial.     See Johnson v. United States, 520 U.S. 461, 464 (1997).

An error in instructing the jury is harmless if it is “clear

beyond a reasonable doubt that a rational jury would have found

the defendant guilty absent the error.”                Neder v. United States,

527 U.S. 1, 18 (1999).

            To   demonstrate    plain       error,    an     appellant    must    show

that (1) there was error, (2) the error was plain, (3) the error

affected his substantial rights, and (4) the error seriously

affected the fairness, integrity, or public reputation of the

judicial    proceedings.       Johnson,       520    U.S.     at    464-66   (citing

United States v. Olano, 507 U.S. 725, 732 (1993)).                        This Court

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has held that a defendant who failed to preserve his objection

to a flawed instruction “must demonstrate that the erroneous

instruction given resulted in his conviction, not merely that it

was impossible to tell under which prong the jury convicted.”

United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010)

(quotation marks and alterations omitted).

            In Alleyne, the Supreme Court held that any fact that

increases the statutory mandatory minimum sentence is an element

of the offense and must be submitted to the jury and found

beyond a reasonable doubt.           133 S. Ct. at 2155.        The Alleyne

Court overruled Harris v. United States, 536 U.S. 545 (2002),

which    “held     that   judicial    factfinding      that   increases   the

mandatory minimum sentence for a crime is permissible under the

Sixth Amendment.”         Alleyne, 133 S. Ct. at 2155.          Pursuant to

Alleyne,    “any     fact   that     increases   the     mandatory   minimum

[sentence] is an ‘element’ that must be submitted to the jury.”

Id.     The Alleyne opinion found that the trial court erred when

it imposed a seven-year mandatory minimum sentence on a § 924(c)

conviction, because the jury had not found the facts supporting

the mandatory minimum beyond a reasonable doubt.               Alleyne, 133

S. Ct. at 2156-58.          In overruling Harris, the Supreme Court

explained that mandatory minimum sentences increase the penalty

for a crime, and that the facts used to enhance the sentence are

offense elements that “must be submitted to the jury and found

                                       4
beyond a reasonable doubt,” before an enhanced mandatory minimum

sentence can be imposed.        Alleyne, 133 S. Ct. at 2158.

            Here,    the   jury   was       only   instructed    to    determine

whether Clinton used, carried, or possessed the firearm that was

used in the robbery.         We find the error was not plain, however,

because the overwhelming evidence revealed that the weapon was

also discharged at a police officer as the co-conspirators fled.

Thus, we have no difficulty finding the error in instructing the

jury harmless because it is clear beyond a reasonable doubt that

a rational jury would have found the defendant guilty absent the

error.   Neder, 527 U.S. at 18.

            Accordingly, we affirm Clinton’s ten-year sentence for

his § 924(c) violation.        We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before    this    court   and     argument   would   not    aid   the

decisional process.

                                                                       AFFIRMED




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